*1 Plaintiffs and Counter-Defendants Brocade Communications Systems, Inc. (“Brocade”) and Foundry Networks (“Foundry”) (collectively, “Plaintiffs”) have submitted a motion for evidentiary and monetary sanctions against Defendants for failure to comply with court orders regarding source code and computer media. Defendants and Counterclaimants A10 Networks, Inc. (“A10”), Lee Chen, Rajkumar Jalan, Ron Szeto, David Cheung, Liang Han, and Steven Hwang (collectively, “Defendants”) have submitted an opposition to the motion, and Plaintiffs a reply thereto. A hearing was held on June 11, 2012. A further hearing, with the court-appointed neutral expert, Mark Menz, was conducted on June 12, 2012. At the further hearing, it was agreed that each side would submit an additional brief. Plaintiffs submitted their brief on June 19, 2012, and Defendants submitted a responsive brief on June 26, 2012.

On July 6, 2012, the Special Master issued an order denying Plaintiffs' motion for evidentiary and monetary sanctions against the A10 Defendants for failure to comply with court orders other than the so-called Szeto media orders. With respect to the Szeto media orders, the July 6th order required A10 and/or its counsel to provide declarations regarding A10's compliance with certain aspects of the Szeto media orders. Since the July 6th order, the Special Master has been in almost constant email communications with counsel for the parties regarding the Mr. Menz's further productions of data derived from his forensic inspection of the Szeto media. These communications have included requests/motions for relief, responses thereto, a number of tentative rulings, responses thereto, and actual orders. The further declarations required by the July 6th order were submitted as ordered on July 9, 2012, and Plaintiffs' reply thereto was submitted on July 10, 2012. The Special Master has considered the submissions and arguments of counsel and rules as follows:

Plaintiffs allege, inter alia, that Defendant Ron Szeto (“Szeto”) is a former Foundry employee who was specifically recruited by Defendant Chen to work for A10. Third Amended Complaint (“TAC”), ¶ 34. Chen targeted Szeto because of his knowledge of and experience with Foundry's technology and trade secrets as a result of their work in the development of Foundry's ServerIron products, including Layer 2-3 and other Layer 4-7 products. Id. While employed at Foundry, Szeto was a senior engineer closely involved in the development of the ServerIron product line and Foundry's Layer 2-3 networking products. Id. The hiring of Szeto by A10 “was strategic and deliberate—to enable A10 to jump-start its development and bring to market a competing product line in 2-3 years (or less) instead of a norm of 7-10 years in this industry.” Id., ¶ 35. Defendant Chen publicly boasted in a 2008 interview to an industry publication that the success of his company was due to the fact that he had recruited “two of the best engineers from Foundry.” Id. ” Plaintiffs allege that Szeto is a Software Manager at A10 and that Szeto has been deeply involved in the development of the Accused Products from the time they joined A10 to the present. Id. ’

*2 Plaintiffs allege that Defendants have engaged in schemes to misappropriate for A10's use Plaintiffs' intellectual property, which Defendants had access to and familiarity with as a result of their employment, experience, and positions of confidence and trust at Foundry and Brocade. TAC, ¶ 52. Id. In 2007, A10 announced a forthcoming product line known as the AX Series. Id. ¶ 56. At this time, Plaintiffs were unaware that the AX Series was a competitive product to ServerIron and ADX products. Id. The A10 AX Series products utilize software code copied from, or substantially similar to, Plaintiffs' copyrighted software code. Id., ¶ 58. Defendants, after their employment by Foundry ended, still possessed one or more unauthorized copies of the Foundry source code, which embodies Plaintiffs' trade secrets. Id., ¶ 59. The individual defendants and others at A10 used the Foundry source code to develop the software code for the Accused Products, and actually incorporated the Foundry source code, in whole or in part, into the code for the competing AX series. Id. Brocade acquired Foundry in December 2008. Id., ¶ 3.

Plaintiffs filed their initial complaint against Defendants on August 4, 2010. A second amended complaint was filed on April 13, 2011, and the third amended complaint was filed on April 29, 2011. Plaintiffs third amended complaint against Defendants alleges causes of action for patent infringement, copyright infringement, trade secret misappropriation, breach of contract, breach of fiduciary duty, breach of the duty of loyalty, interference with prospective economic advantage, interference with contract, and unfair competition under California Business & Professions Code §§ 17200 et seq.

On March 2, 2011, Plaintiffs served upon Defendants requests for production of documents, which included a request (no. 3) seeking production of a copy of all source code in native format “that any person ever wrote, generated, downloaded, modified, or used as a reference at any time as part of the development process for any AX Series device (whether or not that Source Code was actually included as part of a Release.”

On March 24, 2011, the Court issued a Case Management Order (“CMO”) stating inter alia that “[a]ll other discovery shall commence now, including discovery of source code relevant to the copyright and patent infringement claims.” McBride Decl., Ex. 1 (Dkt. No. 72). As of an April 28, 2011 case management conference (“CMC”), A10 had produced none of its source code. Id., Ex. 2 (Dkt. No. 86). During the April 28, 2012 CMC, A10 was ordered to produce all of its source code within 30 days. Id.

Plaintiffs subsequently filed a motion for contempt and sanctions as a result of A10's failure to timely produce the source code. A hearing on Plaintiffs' motion was held on August 12, 2011. See McBride Decl., Ex. 4. As of August 12, 2011, A10 had produced some of its source code, but had failed to produce source code from 2005-2007. Id.; see also Mosko Decl., Exs. 11-12. At the August 12, 2011 hearing on the motion, the Court issued an order to show cause why A10 should not be sanctioned for failing to timely produce source code in violation of the Court's Orders. McBride Decl., Ex. 4. On August 30, 2011, the Court held the show cause hearing. Id.

The Court's August 30, 2011 CMO established March 2, 2012 as the fact discovery cut-off date in the action, March 21, 2012 as the date for initial expert reports, and April 6, 2012 as the date for rebuttal expert reports. The date for opening expert reports was subsequently moved to March 23, 2012, and the date for rebuttal reports to April 9, 2012. McBride Decl., Ex. 29.

Also on August 30, 2011, the undersigned was appointed Special Master to “oversee the collection and production of source code from A10 that predated March 8, 2007.” McBride Decl., Ex. 3.

On September 6, 2011, the Court granted Plaintiffs' motion for sanctions, and imposed monetary sanctions in the amount of $26,680 upon A10 for A10's failure to timely produce its source code. McBride Deel., Ex. 4 (Dkt No. 202). The Court found that by failing to produce the source code from 2005-2007, A10 had violated two discovery orders requiring A10 to produce its source code. Id.

*3 On September 14, 2011, Mark Menz was appointed a neutral forensic expert to assist the Special Master in his role overseeing the collection and production of A10 source code. Mosko Decl., Ex. 30. The order precludes the parties, the parties' employees or experts, and the parties' counsel from initiating any ex parte contact with the expert, except to coordinate scheduling. Id.

On September 15, 2011, in response to an order by the Special Master requiring A10 to provide declarations from its engineers who were involved in the writing source code for the AX device before March 8, 2008, A10 provided Plaintiffs with a declaration from Szeto. The declaration provides in part that:

McBride Decl., Ex. 19.

A10 produced additional source code to Plaintiffs in on September 30, 2011.

On October 7, 2011, counsel for Plaintiffs sent a letter to counsel for Defendants regarding certain of A10's recently produced source code files. McBride Decl., Ex. 10. The letter states that Plaintiffs “have confirmed that these files are, in fact, Brocade ServerIron files that have been copied on various A10 engineer hard drives.” Id. The letter demanded immediate production of every hard drive and/or other storage device, of any kind, that ever contained a copy of any of the identified file, or in the alternative, A10's production of forensically identical images of each tainted electronic storage device. Id. The letter asserted that the files and hard drives were responsive to a number of Plaintiffs' prior requests for production of documents. Id.

On October 10, 2011, the Special Master issued his report regarding A10's source code production. Mosko Decl., Ex. 17. The Report notes that A10 had provided declarations from its engineers, including Szeto, who were involved in the writing source code for the AX device before March 8, 2008. Szeto was one of the individuals interviewed by the Special Master and Mr. Menz. The report notes, inter alia, that “all existing laptops, workstations, and other devices having the capability of storing electronic data (“electronic devices”) (approximately 265 devices), including those used by A10 engineers who had some responsibility in writing source code for A10's AX product before March 8, 2007, have been collected and forensically imaged by A10 and its consultant at MDS,” and that A10's data consultant had searched the forensic images for files that had one of 17 different extensions associated with source code, and that when such a file was located, such file was copied onto a USB drive and delivered to A10's counsel. In October, 2011, during a telephone conference, counsel for the parties were advised of the Special Master's belief that A10 had satisfied its obligation of producing source code that was located on the A10 developers' computers. Mosko Decl., ¶ 2.

*4 On December 27, 2011, Brocade filed a motion to compel forensic inspection of Szeto's computer hard drives. See McBride Decl., Ex. 11. A10 opposed the motion. Id.

On January 9, 2012, the Court granted Brocade's motion to compel a forensic inspection of Szeto's computer hard drives. McBride Decl., Ex. 11 (Dkt. No. 438). The January 9th order provides in pertinent part that:

Id., Ex„ 11 at 3-4. The parties were ordered to meet and confer regarding an inspection, search and production protocol. Id. at 5. The order noted that the protocol “must minimize the burden and inconvenience to A10,” and that “if the parties cannot agree that the inspection can be carried out by Brocade's expert under observation by an expert retained by A10, then the parties shall attempt to agree on a procedure for selecting a neutral third party expert to conduct the inspection.” Id. at 4.

Shortly after this Order issued, the parties stipulated that Mark Menz would be the expert who would complete the forensic inspection of Szeto's hard drives. Mosko Decl., ¶ 3. Shortly after the parties agreed to Mr. Menz, A10 forwarded a copy of the January 9, 2012 Order to Mr. Menz. Id.

*5 On February 7, 2012, the court issued an order regarding, inter alia, the forensic inspection of the Szeto computer hard drives. McBride Decl., Ex. 13 (Dkt. No. 465). After noting that A10's inspection protocol proposal was inconsistent with the Court's January 9, 2012 Order, the court ordered the following forensic inspection protocol:

McBride Decl., Ex. 13 at 3-4 (emphasis added). The February 7th order also required A10 to “prepare and produce a 30(b)(6) witness regarding Ron Szeto and third party source code filed by February 17, 2012.” McBride Decl., Ex. 13 at 2.

On February 8, 2012, counsel for A10 directed that all devices about which his firm was aware that contained files from Ron Szeto should be sent to Mark Menz. Mosko Decl., ¶ 4. On February 9, 2012, counsel for A10's law firm sent Mr. Menz four devices. Id. “One of those devices was an image of Mr. Szeto's computer that was taken in or about October, 2010.” Id. Szeto testified during his deposition, discussed below, that he had experienced problems with this hard drive. Mosko Decl., ¶ 4. Counsel for A10 declares that the image of Szeto's computer was taken before he experienced problems with his hard drive. Id.

On February 14, Szeto provided Plaintiffs with responses to Plaintiffs' interrogatories identifying the computers he used from December 2004 through the present. McBride Decl., Ex. 15. Interrogatory I asked Szeto to “describe any and all computers you have used for any purpose from December 21, 2004 to the present.” The responses state that Szeto used six computers from 2004 to the present, plus a desktop computer he used while working at Foundry about which he is unable to recall any information. Id. at 3. More specifically, Szeto's response to interrogatory 2 provides as follows:

*6 Id. (footnotes omitted).

Szeto's Dell Inspiron laptop, onto which Szeto had copied Foundry source code while he worked at Foundry, was “disposed ... in 2008 through an electronics recycling program.” Id. at 3. With respect to the Lenovo X220 (serial number R9H93K2), the response notes that “Szeto currently uses this computer, a laptop, as his primary computer in connection with his employment at A10,” and that “he uses it both at the A10 Networks facility and at home.” Id.

3. Interrogatory 2 asked Szeto to describe every internal hard drive or other form of internal memory ever used by Szeto for each computer identified in response to interrogatory 1. Szeto's response to interrogatory 2, which only provides information for the one computer that featured two separate internal hard drives, provides that:

On February 28, A10 produced Gurudeep Kamat (“Kamat”) to testify as its designee regarding topics in both the first and second 30(b)(6) notices, including files on Szeto's hard drives and Szeto's personal computers. McBride Decl., Ex. 16; Mosko Decl., Ex. 22. In pertinent part, Kamat testified that he had not reviewed the Szeto interrogatory responses', and that Szeto's Dell computer was recycled in 2009. See Id., Ex. 16 at 224:1-225:3, 253:18-255:2, 227:12-229:11, 244:19-245:5 and 231-236.

Kamat testified that A10 had issued a laptop to Szeto when he started working for A10, and that Szeto transferred a bunch of files from his personal computer that he was using for his work at A10 to the laptop issued by A10, and that he did not realize that a bunch of other Foundry files on his personal computer inadvertently “came along with the transfer of materials” from his personal computer. McBride Decl., Ex. 16 at 231:1-236:16.

During the deposition, Kamat also testified that A10 or Szeto had located a USB thumb drive containing 157,000 files, i.e., a backup of the “Ron S” directory that he had copied from his A10 Lenovo T61 computer on June 3, 2010. Id., Ex. 16 at 242-247. The files had been transferred to the thumb drive as part of what A10 understands to be “a routine backup of his hard disk.” Id. at 242. In response to counsel for Brocade's request that a forensic copy of the thumb drive be turned over to the neutral expert, counsel for A10 indicated that the original thumb drive (not a copy) had been turned over to the neutral expert “within the last 48 hours.” Id., Ex. A at 245.

Counsel for A10 declares that after the initial set of devices was sent to Mr. Menz, Szeto gave counsel for A10 a thumb drive. Mosko Decl., ¶ 4. The thumb drive was sent to Mr. Menz the same day A10's counsel received the thumb drive from Szeto. Id.

*7 On February 29, 2012, Plaintiffs deposed Szeto. McBride Decl., Ex. 18. During the deposition, Szeto repeatedly answered questions by claiming he did not remember or did not understand the question. Szeto, however, did offer the following substantive testimony. Szeto testified that while he was at Foundry, he used his own Dell laptop for work. Szeto occasionally download Foundry source code files on his laptop. The Foundry files on the laptop were in a directory entitled “Ron S.” Szeto left Foundry in 2005 and went to work for A10. Szeto also used the Dell laptop for his work at Foundry. Szeto testified that he used his Dell laptop computer (which had Foundry source code on it) when writing software code for A10's AX product. In 2008, when A10 provided Szeto with an A10 notebook computer, he copied the Ron S. directory from his Dell laptop to the A10 computer “not knowing there were Foundry files” in the directory. Szeto also testified that he did not remember if he had made copies of files from his Dell laptop to a thumb drive. Id., Ex. 18 at 40, 49-56:11. Szeto testified that he recycled his Dell laptop in 2008. Id. at 49.

Szeto testified that his first A10 computer hard drive crashed, and that A10 gave him a new hard drive that, when it was given to him, already had the Ron S. directory on it. A10's IT department had added data, including the Ron S. directory, to the new hard drive from the image of Szeto's computer that A10's legal department had previously taken of Szeto' A10 computer. McBride Decl., Ex. 18 at 198-199. Szeto testified that he subsequently deleted the Ron S. directory from his second A10 hard drive of his first A10 computer (but left it on his second A10 notebook computer. Id. at 205:17-206:8. This deletion of data occurred during the pendency of this litigation.

Szeto also testified that he recently discovered a thumb drive at his home containing the Ron S. directory. Szeto testified that in thinking about his upcoming deposition he thought of the thumb drive. McBride Decl., Ex. 18 at 56:9-58:3. Szeto testified that he believed that the Ron S. directory on the thumb drive came from his A10 computer, not his Dell laptop. Id. at 60:2-61:13. Szeto, however, was unable to testify regarding the contents of the files in the thumb drive, outside of the presence of the Ron S. drive, sub-folders, and a directory that belonged to his daughter. Id.

Finally, Szeto was unable to answer any questions about his computer directory structure, claiming that the only available exhibit (which A10 had produced) related thereto was incomplete. McBride Decl., Ex. 18 at 148:1-151:20. Plaintiffs unsuccessfully attempted to obtain the directory structure information in advance of the Szeto deposition Id., Ex. 21.

On March 12, 2012, Plaintiffs submitted a motion to the Special Master seeking, inter alia: (1) immediate production of the Szeto thumb drive, or all responsive documents and materials recovered from the thumb drive by the neutral expert, Mr. Menz; and (2) all testing code, including all .tcl files, used in the testing of the AX Series device at any time in any way.

With respect to the thumb drive, Plaintiffs argued that A10 had misused the Court-ordered forensic inspection procedure to delay production of responsive and potentially highly probative evidence for Plaintiffs' claims, asserting that Mr. Menz's responsibilities dealt only with forensic recovery of hard drives Szeto had previously used that contained potentially deleted files that may be relevant to Plaintiffs' claims, and there was no evidence or allegation by A10 that the thumb drive required forensic recovery by Mr. Menz. Plaintiffs instead asserted that the thumb drive was a copy of highly probative files that were plainly responsive to document requests in this trade secrets and copyright action, and thus the thumb drive should be immediately produced. With respect to Plaintiffs' further request for immediate production of all responsive documents and materials recovered from the computer media delivered to the neutral expert, Plaintiffs asserted that the materials “should have been produced by now” and should be produced to Plaintiffs by March 16, 2012.

*8 In opposition to the motion, A10 asserted that it had not “misused the Court-ordered forensic inspection procedure” by sending the Szeto USB device to Mr. Menz, due to the fact that the Court's February 7, 2012 Order required A10 to “deliver to Mr. Menz for imaging all computers and portable or detachable hard drives used by Ron Szeto since December 21, 2004” and stated that “Mr. Menz shall recover from the mirror images all available and recoverable documents and files, including, but not limited to those files that were deleted, and that “Mr. Menz shall provide the recovered files to counsel for Defendants A10” A10 further argued that “Brocade already has the documents it sought in the motion,” stating that A10's image of the Szeto drive “was used to search for and produce documents from Mr. Szeto's computer,” and that “if A10 missed any documents, or if there are recoverable documents from the forensic imaging that Mr. Menz is doing, those will be produced pursuant to Judge Koh's Order.”

On March 21, 2012, Plaintiffs' motion to compel immediate production of the Szeto thumb drive was denied on that the grounds that “[b]y providing the thumb drive to the neutral expert, A10 complied, belatedly, with the Court's February 7, 2012 order.” McBride Decl., Ex. 24. Plaintiffs' motion did not seek A10's production of responsive documents on the thumb drive. With respect to Plaintiffs' further request for production of all responsive documents and materials recovered from the computer media delivered to the neutral expert, the March 21st order provides that:

Id.

On March 26, 2012, counsel for A10 sent an email to counsel for Brocade and the Special Master regarding the forensic inspection of the Szeto drives. The email provides that:

McBride Decl., Ex. 23.

After his conversation with Mr. Menz, counsel for A10 contacted an attorney at his firm's office in Washington, D.C. (Daniel McNeely) who was going to assist in the relevance, privilege review and production of the documents soon to be provided to A10's counsel by Mr. Menz. Mosko Decl., ¶ 6; McNeely Decl., ¶ 2. Mr. McNeely understood that a forensic expert would be reviewing files from several media that his firm's Palo Alto office had earlier sent to him. McNeely Decl., ¶ 2. Mr. Mosko explained to Mr. McNeely that the forensic expert would be culling files from various media, and would be sending those files and a forensic analysis of these files to Finnegan's Palo Alto office. Id. Mr. McNeely's “responsibility was to assemble a group of attorneys to review the files that this forensic expert would send, perform a relevance and privilege review, and identify which files remained after those that were identified as either irrelevant or privileged.” Id. Mr. McNeely understood that the remaining files that he and his group identified as relevant and not privileged, along with the forensic analysis of those files would then be produced. Id. Mr. McNeely was advised that the files would include personal information that was unrelated to this litigation. Mosko Decl., ¶ 6.

*9 Mr. Mosko also spoke with Michelle True, a litigation support analyst at his firm whose duties include preparing documents and files for review by attorneys. Mosko Decl., ¶ 7. It was agreed that Ms. True would process the files received from Mr. Menz by loading them onto a Relativity database. Id. Once the files were loaded onto this database, Mr. McNeely and his group could access the files and review them for relevance and privilege.” Id. Mr. Mosko understood that the files that Mr. McNeely believed to be relevant and not privileged would be marked, and Ms. True would then arrange to have those Bates-Stamped and produced. Id.

On March 29, 2012, Randal Holderfield, the legal assistant assigned to the Brocade v. A10 litigation, received two DVDs from Mr. Menz. Holderfield Decl., ¶ 3. “The DVD's were hand-labeled “Document, Files.” Id. “The case in which they were enclosed was hand-labeled “Files and Documents from Drive #1 of 5.” Id. “There was no accompanying letter of enclosure, or any instructions or directions included with either of the two DVD's.” Id. The same day, Mr. Holderfield gave Ms. True the two DVDs from Mr. Menz. True Decl., ¶ 3. Ms. True “did not see a cover letter or any kind of direction from Mr. Menz explaining how he had extracted the files, or how he had performed his responsibilities.” Id. Ms. True declares that:

Id., ¶ 3. “In order to allow the Finnegan lawyers in the other office to review the files for privilege and relevance,” Ms. True sent the files to a vendor “for standard native-file processing.” Id., ¶ 4. Ms. True was told by Mr. Mosko that Mr. McNeely, one of the attorneys in Finnegan's Washington D.C. office “would be arranging for and supervising the review of the files on the Relativity database.” Id., ¶ 5. Shortly after the files were entered onto the Relativity database, Mr. Mosko and Mr. McNeely discussed the review of the files. Mosko Decl., ¶ 9.

In early April 2012, Mr. McNeely had several discussions with Ms. True. McNeely Decl., ¶ 3. Mr. McNeely understood that the files would be entered into a Relativity database and made available for the work he was to perform. Id. The Relativity database was made available to him at this time. Id. “There were many thousand files on this Relativity database.” Id., ¶ 4. Mr. McNeely's group “performed a relevance and privilege review by opening each of the documents, reviewing their contents, and making a determination whether each was relevant and whether each contained communication from or to an attorney.” Id. “The results of our review were indicated on the Relativity database itself.” Id. “Specifically, those documents that were either irrelevant or privileged were marked in the database.” Id. “This Relativity database did include approximately nine (9) TXT files.” Id. Neither Mr. McNeely nor the attorneys in his group “who were performing this review inquired about these TXT files.” Id. “They were marked as irrelevant.” Id. Mr. McNeely “did not appreciate that these TXT files may have included data that the forensic expert was tasked to produce from the files he reviewed.” Id. When the work of his group was completed, Mr. McNeely notified Ms. True. Id., ¶ 5.

*10 When Mr. McNeely notified Ms. True that he had completed his work on the files initially loaded onto Relativity, Ms. True “used Relativity's production tools to prepare the relevant documents for standard native production.” True Decl., ¶ 5. “Bates stamp numbers were then placed on the appropriate files and then loaded onto a USB thumb drive.” Id. Ms. True gave the thumb drive to Mr. Holderfield. Id. Ms. True was told that Mr. Holderfield processed the thumb drive and produced it to Plaintiffs' on April 9, 2012. Id.

On April 9, 2012, Brocade received from A10 an unmarked USB drive containing 21,708 files of various types and a letter enclosed with the production. McBride Decl., ¶ 26 and Ex. 25 thereto. Among the 21,708 files, there were 14,516 source code files (.c); 4,525 text files (.txt), 643 pdf files (.pdf), 489 word documents (.doc), 401 emails (.msg), 295 .tcl files (.tcl), among hundreds of others.” The letter accompanying the production “only identified the Bates ranges of the files, and failed to otherwise identify the files, their source, or any connection to the Szeto media analyzed by the Court's Rule 706 expert.” McBride Decl., ¶ 26. On April 11, 2012, A10 confirmed by email that the thumb drive produce by A10 on April 9, 2012 was produced as part of the Szeto forensic inspection. McBride Decl., Ex. 27.

Every file included in the April 9th production was renamed with a Bates-stamp designation, thereby overwriting the original file name. Rubin Decl., ¶ 8. The April 9th production included load files with native files. Id., ¶ 7. However, contrary to common industry practice, the production did not include file-system or embedded metadata as part of the load file, and thus did not include information showing when any files were created, accessed, copied, or deleted and the contents of deleted files that could not be recovered.” Id., ¶¶ 5-6. A10's production also did not include filename, last accessed date, file creation date, entry modified date, last written date, full path, logical size, hash value, source information, or any other important file system metadata characteristics. Id., ¶ 7. Finally, while it is common industry practice to include, at a minimum, directory structures for the original media from which files and data are being recovered forensically, the April 9th production does not include any such media directory structures. Id., ¶ 10. “None of the files included any information identifying the original file source.” Id. As a result, Plaintiffs' expert is unable to identify the Szeto media from which each file came and to verify whether multiple copies of the same file came from one single device or represent a unique file on multiple devices.” Id.

On April 10, counsel for A10 produced to counsel for Plaintiffs a second USB device containing roughly 500,000 single-page tagged TIFF image files. McBride Decl., ¶ 27 and Ex. 26 thereto; McBride Reply Decl., ¶ 8. The accompanying production “only identified the Bates ranges of the files, and failed to otherwise identify the files, their source, or any connection to the Szeto media analyzed by the Court's Rule 706 expert.” McBride Decl., ¶ 27. The April 10th production by A10 included no native files. Rubin Decl., ¶ 9. “In addition to lacking all file system metadata ..., the second production additionally omits any embedded metadata that may have otherwise been available in the native files.” Id., ¶¶ 5, 9. “As a result, these files included no electronic information upon which [Plaintiffs' expert] could conduct any forensic analysis including (a) ascertaining the source of the underlying information, (b) assessing when a file was created, (c) knowing if or when a file was deleted, or (d) understanding when a file was access, copied, or used. Id. Every file included in the April 10th production was renamed with a Bates-stamp designation, thereby overwriting the original file name. Id., ¶ 8. The April 10th production did not include media directory structures. Id., ¶ 10.

*11 In compliance with the prior court orders, Brocade provided A10 with a number of expert reports, including one regarding forensic analysis of computer media (by Samuel Rubin) and a technical expert regarding copyright infringement (by Robert Zeidman). McBride Decl., ¶ 40. On April 9, A10 provided Plaintiffs with an expert report from David Klausner regarding Plaintiffs' claims of trade secret misappropriation and other matters. McBride Decl., ¶ 42 and Mosko Decl., Ex. 10. On April 11, 2012, A10 served a Supplemental Rebuttal Expert Report of David Klausner regarding Plaintiffs' claims of copyright infringement. Id., ¶ 32 and Ex. 30 thereto.

The Zeidman report includes his opinions regarding the Brocade files on Szeto's hard drive. See McBride Decl., Ex. 32. Mr. Klausner's supplemental rebuttal report addresses, in part, Mr. Zeidman's opinions regarding the Brocade files on Szeto's A10 computer. Id., Ex. 30, ¶¶ 84-96. Mr. Klausner's opinions include that because Szeto regularly used his personal laptop for work-related purposes at Foundry, and Foundry's supervisor knew of Szeto's practice and approved of it, he sees nothing wrong with Foundry files being on Szeto's hard drive. Id., Ex. 30, ¶ 88. The Klausner Supplemental Rebuttal Report further states that:

Id., Ex. 32 at ¶¶ 89-91, 95-96 (emphasis added).

During expert depositions, A10 Counsel cross-examined Brocade's experts (Samuel Rubin and Robert Zeidman) on their access to and forensic analysis of Szeto's media. See McBride Decl., Exs. 33 (Rubin Depo.) at 178:9-179:23 and 34 (Zeidman Depo.) at 81:19-23.

On April 16, 2012, Ms. True received another DVD from Mr. Menz. True Decl., ¶ 6; Holderfield Decl., ¶ 4. “This DVD was hand labeled ‘Drive #2.” ’ Holderfield Decl., ¶ 4. “The case in which it was enclosed was hand labeled ‘Production from Drive #2.’ ” Id. “Again, no letter of enclosure or any instructions or directions accompanied the third DVD.” Id.; True Decl., ¶ 6. When Ms. True looked at the files on this DVD, they appeared in a similar form to the files on the first DVD. True Decl., ¶ 6. “There were no TXT files on this second DVD that looked to be similar to the TXT files Mr. Menz provided on the first DVD.” Id. Similar to the work done on the first set of DVDs, Ms. True “sent this DVD to the vendor who processed the files on this DVD in a similar way as it did for the first.” Id., ¶ 7. When Ms. True received the files from the vendor, she loaded them onto a Relativity database. Id.

*12 In mid-April 2012, Mr. McNeely learned that another set of files had been placed in the Relativity database. McNeely Decl., ¶ 6. “Similar to the initial work I performed, my responsibility was to assemble a group of attorneys and perform a review for privileged and irrelevant documents on this second set of documents.” Id. “We completed our review within several days after learning that additional documents had been loaded into the Relativity database.” Id. “We identified on this database which documents were irrelevant or privileged.” Id. Mr. McNeely notified Ms. True when the work of his group was completed on the second set of documents in the Relativity database. Id., ¶ 7. Mr. McNeely and his team identified the files to be produced, and Ms. True “used Relativity's production tools to prepare the relevant documents for standard native production and attached bates numbers to these documents.” True Decl., ¶ 7. The files were then prepared and placed on a device, and Ms. True understands that the device was produced to Plaintiffs' counsel on April 25, 2012.

On April 26, 2012, counsel for A10 produced to counsel for Plaintiffs a third USB device containing roughly 12,568 files. McBride Decl., ¶ 29 and Ex. 28 thereto; McBride Reply Decl., ¶ 9. Among the 12,568 files, there were 8,171 source code files (.c files), 264 text files (.tct), 1,087 pdf files (.pdf), 212 word files (.doc), and 32 emails (.msg), among hundreds of others. McBride Reply Decl., ¶ 9.

Every file included in the April 26th production was renamed with a Bates-stamp designation, thereby overwriting the original file name. Rubin Decl., ¶ 8. The April 26th production did not include file-system or embedded metadata as part of the load file, and thus does not include “information showing when any files were created, accessed, copied, or deleted and the contents of deleted files that could not be recovered.” Id., ¶¶ 5-6., Id., ¶ 6. A10's production also did not include filename, last accessed date, file creation date, entry modified date, last written date, full path, logical size, hash value, source information, or any other important file system metadata characteristics. Id., ¶ 7. Finally, the April 26th production does not include media directory structures. Id., ¶ 10.

On April 30, 2012, counsel for Plaintiffs advised counsel for A10 that Plaintiffs intended to serve a motion for sanctions. Mosko Decl., ¶ 12. Meet and confer discussions regarding the intended motion were unproductive. Id., ¶¶ 14-15.

As of May 4, 2012, Mr. Menz had not contacted Plaintiffs' counsel regarding his forensic analysis of or productions from the Szeto media. Id., ¶ 44. As a result, Plaintiffs, at that time, had “no information regarding 1) what hard drives or media were provided to Mr. Menz to analyze; 2) the scope and methodology of his forensic analysis; 3) the files and electronic information he recovered; 4) the outstanding tasks to be performed and expected date of completion; 5) the costs and fees associated with the work he has completed; and 6) whether any deleted files were recovered or could not be recovered,” Id. As of May 4, 2012, Brocade's counsel had “not received any production of files from the Szeto thumb drive” that A10's counsel produced directly to Mr. Menz on or about February 27, 2012. McBride Decl., ¶ 43. “To the extent that any files from this particular thumb drive were produced by A10's counsel in the April 9, April 10, and April 26 productions, no electronic information or otherwise was produced identifying the original source media of any files, including this Szeto thumb drive.” Id.

On May 4, 2012, Plaintiffs submitted the present motion for evidentiary and monetary sanctions against Defendants (and for monetary sanctions against A10's counsel) pursuant to Fed.R.Civ.P. 26(a)(2)(B)(ii), 37(b)(2), 37(c)(1) and the inherent authority of the Court. The motion asserts that Defendants (and their counsel) have violated a long list of court orders “in their effort to conceal evidence regarding Ron Szeto's possession and use of Foundry's source code.” The motion asserts that the court orders were violated when Defendants: (a) “failed to produce the contents of a thumb drive containing Brocade's source code despite three orders to produce all source code; (b) refused to produce a 30(b)(6) witness to address the contents of the Szeto media despite an order to produce such a witness; (c) later produced two 30(b)(6) witnesses who were unprepared to address significant questions regarding the contents of the Szeto media despite two orders to produce a prepared 30(b)(6) witness; (d) failed to report to Brocade regarding the status of the Rule 706 expert's analysis despite the Court's order that such reports be made; (e) spoliated the contents of Szeto's hard drive during the pendency of the litigation; (f) spoliated the ESI recovered by Mr. Menz and violated the Court's order to provide relevant ESI regarding the Szeto media; and (f) after a year-long effort to conceal Brocade's source code in A10's hands that involved violating six separate court orders requiring production of some or all of the contents of one or more of the pieces of Szeto media, purported to rely upon a forensic analysis of that very same media in connection with a late-produced expert report of Mr. David Klausner that violated additional court orders.” Notice of Motion at 2.

*13 Plaintiffs' motion is supported in part by a declaration from Samuel Rubin, one of Plaintiffs' experts. Mr. Rubin, in addition to the statements included above, declares that:

Rubin Decl., ¶¶ 3-11.

On May 8, 2012, counsel for A10 reviewed Plaintiffs' motion for sanctions and “learned for the first time that Brocade was accusing A10 and counsel of spoliation regarding the metadata on the files produced from those files sent to us from Mark Menz.” Mosko Decl., ¶ 16. On the same day, Mr. Mosko told this to Ms. True. True Decl., ¶ 8.Ms. True began investigating, and told Mr. Mosko that “the production could not affect the metadata on the originals in Mr. Menz's possession.” Id.

On May 9 or 10, 2012, Ms. True told Mr. Mosko about the TXT files found on the first DVD. True Decl., ¶ 8. After reviewing some of the contents of first package sent by Mr. Menz with Ms. True, Ms. True showed Mr. Mosko that “the TXT files, which she said were intermittently located in the first DVD from Mr. Menz included meta data logs.” Mosko Decl., ¶ 16. Ms. True told Mr. Mosko “that she did not understand that these TXT files included information that was supposed to be produced,” and that “she did include these TXT files on the Relativity database that Mr. McNeely and his team would be reviewing.” Id. Ms. True and Mr. Mosko “opened one of the TXT files and for the first time, saw what appeared to be the metadata analysis on some of the produced files.” True Decl., ¶ 8. Ms. True declares that:

*14 Id., ¶¶ 8-9.

Upon seeing the meta data on the TXT files, Mr. Mosko “asked Ms. True if they could be immediately produced to the Orrick law firm. Ms.” Mosko Decl., ¶ 17. Ms. True explained “that these TXT files did not include the Bates numbers that were assigned to the files that had been earlier produced,” and that “for the TXT files to be useful, she had to insert the assigned Bates numbers next to the files on the TXT.” Id. Mr. Mosko asked Ms. True to “correlate the information on the TXT files to the Bates' numbered files so that one who looked at the information on the TXT file could then find any particularly referenced Bates-numbered document that we earlier produced.” True Decl., ¶ 9. Ms. True told Mr. Mosko that she would “need several days to correlate the Bates numbers to the entries on the TXT files.” Mosko Decl., ¶ 17. Mr. Mosko directed Ms. True “to begin this correlation as soon as possible.” Id.

On May 14, 2012, counsel for A10 sent counsel for Plaintiffs an email explaining the process that A10 was undertaking. Mosko Decl., ¶ 18 and Ex. 6 thereto. The email provides in part that:

Id.

“In order to do the correlation, Ms. True worked closely with our vendor to create a cross reference sheet that would help me identify each document by unique number to a line item in Mr. Menz's TXT files. True Decl., ¶ 9. Ms. True could then use this information to insert the Bates' numbers of the documents we produced to the corresponding documents found in Mr. Menz's TXT files.” Id. “This process took quite a while as there were thousands of documents referenced in nine (9) separate TXT files.” Id. Once the Bates Numbers were added to the appropriate TXT-referenced document, Ms. True took each of these new TXT files and created a single spreadsheet. Id. and Ex A thereto (the spreadsheet). Ms. True declares that:

Id., ¶ 10. On May 17, 2012, Ms. True told Mr. Mosko that she had completed her correlation work, and had created a single spreadsheet that contained the entries on the nine (9) TXT files that we had earlier produced, and the associated Bates Numbers for these entries. Mosko Decl., ¶ 19.

On May 17, counsel for A10 provided the spreadsheet to counsel for Plaintiffs. Mosko Decl., ¶ 19 and Ex. 6 thereto; True Decl., Ex. A. Mr. Mosko's email accompanying the spreadsheet produced to Plaintiffs provides in pertinent part that:

Id.

On May 18, 2012, the day that Plaintiffs' opposition to Defendants' motion for summary judgment was due, counsel for Plaintiffs sent a responsive email to counsel for A10. Mosko Decl., Ex. 6. The email, after quoting the Court's February 7th protocol, states:

Id.

On May 22, 2012, Defendants submitted their opposition to Plaintiffs' motion for sanctions. Defendants' opposition is supported by the above-referenced declarations of Ms. Tine, Mr. McNeely, Mr. Holderfield and Mr. Mosko.

On May 31, 2012, Plaintiffs submitted their reply to motion. Plaintiffs' reply, in pertinent part, asserts that: (1) A10's counsel “admit to violating this Order by withholding Menz metadata for two months;” (2) A10's “unexplained spreadsheet does not correspond to the size of the production, the number of devices, or A10's own e-mails and declarations;” and (3) A10's obfuscation and non-compliance continue to this day.

On June 7, 2012, Plaintiffs submitted a further declaration from their counsel. See Hurst Supplemental Declaration. In the declaration, Plaintiffs state that on June 5, 2012, they took the deposition of Robert Stillerman, A10's rebuttal expert on computer forensic analysis. Id., ¶ 2. Mr. Stillerman's May 21, 2012 report offers his opinion that it was a “critical failure” of Plaintiffs' expert's (Mr. Rubin) analysis that he failed to “present any evidence of these same files on destination computers.” Id., ¶ 2 and Ex. A at 8. During the deposition, Mr. Stillerman confirmed that he intended to offer at trial all opinions set forth in his report. Id., ¶ 3. In response to a question asking whether he thought this was a fair criticism of Mr. Rubin's report with respect to Mr. Szeto's drives since Brocade had requested them and A10 and Mr. Szeto had refused to turn them over for Mr. Rubin's analysis, Mr. Stillerman testified as follows:

*17 Id., Ex. B at 74-75.

On June 11, 2012, a hearing was held regarding the motion. In light of the issues regarding the material produced by Mr. Menz, the parties were ordered to meet and confer regarding questions to be submitted to Mr. Menz concerning his work, and to provide the Special Master with the questions by close of business the on June 11, 2012. It was further ordered that the Special Master would then formulate the questions for Mr. Menz and provide the questions to him, and that a further hearing would be held, with Mr. Menz in attendance, during which the parties would have an opportunity to question Mr. Menz regarding his forensic inspection of the Szeto media.

As ordered, the parties provided the Special Master with a list of questions for Mr. Menz. On June 11, 2012, the Special Master sent an email to Mr. Menz (and counsel for the parties) requesting that he be prepared to answer the following questions at a hearing in San Francisco on June 12, 2012:

The further hearing with Mr. Menz was conducted on June 12, 2012. During the hearing, the parties were instructed that they would permitted to question Mr. Menz for an initial period of not more than thirty (30) minutes each, using their respective submitted questions and any reasonable follow-up questions based thereon, and that after a brief recess, further questioning might be permitted based on the parties' input and what Mr. Menz had related to that point.

The June 12th hearing lasted an hour and a half, and was transcribed. At the beginning of the hearing, Mr. Menz provided the parties and the Special Master with written responses to some of the question sent to him. The written responses indicate as follows:

In response to the first question (Please provide a detailed inventory by device, including name and serial number and dates of use, of the media that has been turned over to you and the dates upon which it was turned over), Mr. Menz's written response is as follows:

There were drive issue read problems with Devices 3 and 4. Mr. Menz is using Encase Version 6 and Encase Ver 3.22G to conduct his analysis of the devices. Mr. Menz provided the total number of active files Devices 1, 2 and 5. Mr. Menz sent A10 the results of analysis of Device 1 on March 26th and his results regarding Device 2 on April 16, 2012. Due to the problems with Devices 3 and 4, he has not completed his assignment. Mr. Menz provided A10 with files on DVD/CD in native format, without alteration. As to the form in which metadata information was provided to A10, Mr. Menz states that since the “files are in native format, file metadata was included within the files.”

Each side asked Mr. Menz questions during the June 12th hearing. As an initial matter, both sides were provided with a copy of a CD containing the complete directory structure for Devices 1, 2 and 5. The CD included text files containing the MFT metadata for the three devices. Mr. Menz confirmed that he provided A10 with two DVDs from Device 1 in late March and with one DVD from Device 2 on April 12th. Mr. Menz stated that he hoped to complete his production from Devices 3 and 4 by the beginning of July 2012, and that his production from Drive 5, the thumb drive, was completed but had not yet been sent to A10.

The files on the DVDs Mr. Menz provided to A10 were in native format, and had been placed into a directory with the file name from the original directory. Mr. Menz did not rename the files to include Bates numbers, and did not convert any of the files to a TIFF format. Mr. Menz noted that converting a file to TIFF format could eliminate the embedded file metadata contained within the native files.

Mr. Menz also explained that by producing the files in native format, if there was metadata within the file (“embedded metadata”), such metadata would be in included in the file produced. With respect to the TXT files in the DVDs produced from Device 1, Mr. Menz stated such text files come from Encase, and include MFT metadata. MFT metadata “is the information about the files, such as creation, modify, access, dates and times, the file path where it was stored.” Mr. Menz stated that his normal practice is to produce document files in a document folder, and to include a text file in each document that contains the corresponding MFT metadata. Mr. Menz stated that the files on the DVDs include active files in native format, and that he believed that the files produced from Device 1 included recovered deleted files. Mr. Menz indicated that he segregated recovered deleted files, and that whether a file was deleted or deleted or overwritten is included in MFT metadata.

*19 Mr. Menz first indicated that he did not include MFT information on the DVDs provided to A10. When asked why there were text files on the Device 1 DVDs but no text files on the Device 2 DVD, Mr. Menz stated he did not know and “that would be confusing to me.” Mr. Menz stated that if he had text files on Device 1 DVDs, he would think they would also have been produced on the Device 2 DVD. Mr. Menz states what he normally does is send the MFT metadata information once he is advised as to which files were relevant or responsive, and asked counsel for Defendants to let him know which text files were missing and he would provide them. Mr. Menz acknowledged that he did not include a cover letter with either production explaining what he had done. When asked whether a forensic person familiar with the way Encase works would understand that the text files included on the DVDs he produced were a common form of output from Encase, Mr. Menz stated that “part of me would say I would have to agree with you and part of me, my experience, I have seen people at Guidant, when given that text file format, they didn't recognize it, which to this day amazes me, but it all depends what she is used to seeing.” Mr. Menz further stated that a seasoned forensic person should be able to recognize that the text files included metadata about files.

At the conclusion of the hearing, it was agreed thathenceforth if any party, Mr. Menz or the Special Master wanted to discuss an issue regarding Mr. Menz's forensic inspection of the Szeto media, they would so advise the Special Master's assistant, who would then set up a call amongst the relevant parties.

On June 19, 2012, Plaintiffs submitted a supplemental brief in support of their motion. The supplemental brief is supported by the Menz Transcript, a portion of the transcript for the June 8, 2012 summary judgment hearing before Judge Koh, and a further declaration from Plaintiffs' expert, Samuel Rubin (“Second Rubin” declaration). The Second Rubin declaration provides in pertinent part as follows:

Second Rubin Decl., ¶¶ 2-8.

On June 26, 2012, A10 submitted their opposition to Plaintiffs' supplemental brief. The opposition is supported by a further declaration from Mr. Holderfield, and a declaration from A10's counsel, David Martens. Mr. Martens declares that:

Martens Decl., ¶¶ 6-8.

Mr. Holderfield declares that “On April 10, 2012, Defendants served several documents that were responsive to an earlier request for production that Defendants received from Plaintiffs and, accordingly, this production on April 10 was unrelated to the results of Mr. Menz's forensic analysis.” Holderfield June 26, 2012 Decl., ¶ 4.

On July 6, 2012, the Special Master issued an order denying Plaintiffs' motion for evidentiary and monetary sanctions against the A10 Defendants for failure to comply with court orders other than the so-called Szeto media orders (“the July 6th order”). With respect to the alleged violations of the Szeto media orders, the July 6th order concluded that the record presented by A10 was insufficient to establish that “A10 and Szeto actually provided all computers/hard drives responsive to the order.” July 6th Order at 27. In lieu of a finding that A10 has not complied with paragraph 2 of the February 7th order, the order required a representative of A10 with knowledge, and, separately, counsel for A10, to provide Plaintiffs and the Special Master with declarations setting forth Defendants' efforts and counsel's efforts to locate to all computers and drives responsive to the February 7th order, and Defendants' production of same to Mr. Menz. The order provides that “[t]he declarations shall indicate whether A10 has provided Mr. Menz with “all computers and portable or detachable hard drives used by Ron Szeto since December 21, 2004,” and notes that to the extent that compliance with the order required the disclosure of work product doctrine and/or attorney-client communications, the disclosure of any such communications would not result in a waiver of the attorney-client privilege or work product doctrine.

*21 The July 6th order, after noting that Defendants' opposition did not address Plaintiffs' assertion that Defendants' productions in response to the February 7th order did not include supplemental responses to Plaintiffs' discovery requests, required counsel for A10 to provide Plaintiffs and the Special Master with a further declaration “setting forth Defendants' compliance with the portion of the Szeto media orders requiring service of a privilege log and supplemental discovery responses within 10 days of receipt of materials from Mr. Menz, and, if Defendants have not complied with these requirements, an explanation as to why that is the case, and when Defendants will be providing the court-ordered log and supplemental discovery responses.” July 6th Order at 28. The July 6th order also permitted Plaintiffs to submit brief responses to the further declarations submitted by A10 and/or its counsel within 24 hours of receipt of the additional declarations.”

In light of the requests for additional information, the July 6th order deferred a final ruling on the portion of Plaintiffs' motion addressing Defendants' alleged violations of the Szeto media orders until after receipt of the requested additional information.

On July 3, 2012, the Special Master sent an email to the parties requesting an update regarding further any further productions from Mr. Menz to Defendants and from Defendants to Plaintiffs in response to the February 7th order. In response, the parties advised that as of July 3, 2012, no additional productions had occurred. On July 6, 2012, Mr. Menz advised the parties and the Special Master that: (1) information from Device 5 (the thumb drive) was sent to A10's counsel on July 2nd; (2) information from Device 3 was sent to counsel for A10 on July 3rd; and (3) he was expecting to send files from Device 4 on July 10th and 11th. With respect to Device 4, Mr. Menz's email indicates that the device “holds evidence files that were imaged by anoher [sic] party,” and that “[t]here are three sets of files and I have recovered one set so far.”

Upon receipt of Mr. Menz's July 6th email, counsel for Plaintiffs emailed the Special Master and counsel for Defendants requesting inter alia that:

As a result of meet and confer discussions regarding these requests ordered by the Special Master, it was determined that counsel for A10 had not yet received any further production from Mr. Menz by 11:00 a.m. on July 6th. Counsel for Plaintiffs then sent a further email to the Special Master reporting on and amending their prior July 6th requests as follows:

On July 6th, at 5:57 p.m., the Special Master granted Plaintiffs' request that A10 be ordered not to modify the filenames and that A10 produce the files in native format exactly as they were supplied by Mr. Menz. With respect to request (3) above (requesting production of MFT data for Device 3 on July 9th) the Special Master advised the parties that it was his tentative ruling to grant the request. With respect to request (4) (time for review of files produced by Mr. Menz), the Special Master indicated that his tentative decision was to shorten time to three (3) business days from receipt. A10 was ordered to provide any arguments to the contrary by 5 p.m. on Sunday, July 8, 2012.

On July 7 and 8, 2012, A10 provided responses to the Special Master's July 6th tentative orders. With respect to the production of the MFT metadata for Device 3 (request 3), A10 objected to the request as premature, requested time to remove any confidential or private information, and stated that if the Special Master ordered A10 to produce the unedited metadata, a stipulation from Plaintiffs that any irrelevant and/or confidential files “will not and cannot be used in any circumstance, either in connection with this case, or otherwise” was necessary. With respect to the amount of time for Defendants to conduct a review of the recovered files, A10 proposed the following:

On July 9th, as required by the July 6th order, A10 and its counsel submitted three declarations. The first is from Szeto, who declares that:

*23 Szeto July 9, 2012 Decl., ¶¶ 2-4.

The second declaration is from counsel for A10, David Martens, which states:

Marten July 9, 2012 Decl., ¶¶ 3-7.

Finally, A10 provides a declaration from its counsel, Jeffrey Smyth, which provides in pertinent part that:

Smyth July 9, 2012 Decl., ¶¶ 3-6.

On July 9, 2012, at 8:03 p.m., counsel for A10 advised Plaintiffs and the Special Master that they received “two drives from Mr. Menz today.” Counsel for A10 advised that one drive had over 14,000 files and that the other drive had over 19,000 files. Counsel for A10 indicated that it had begun the process of reviewing the files, and stated that daily productions would begin on July 11th. After further correspondence and argument regarding Plaintiffs' requested orders on July 9-10, the Special Master issued an order by email at 6:58 a.m. on July 10th (the “First July 10th Order”) which provides in pertinent part as follows:

At 3:32 p.m. on July 10th, Mr. Menz advised the parties and the Special Master by email that: (1) he had recovered the second of three images from Device 4; (2) he was making the files and metadata available to counsel for A10 to download online; and (3) he also had sent the files to counsel for A10 via overnight 10am delivery on a DVD. The email from Mr. Menz further stated that he was then working on the last of the three images on Device 4, that he would advise if the recovery was working, and that after everything had been sent, he would send an inventory of everything sent.

*25 In response to this update from Mr. Menz, at 4:36 p.m. on July 10th, counsel for Plaintiffs sent an email to counsel for A10 and the Special Master which provides as follows:

At 5:34 on July 10th, counsel for A10 sent an email to counsel for Plaintiffs and the Special Master regarding its MFT production. The email provides in pertinent part:

Soon thereafter, counsel for Plaintiffs objected to A10's withholding of MFT metadata, and counsel for A10 responded thereto. Further emails on this issue ensued.

At 8:15 p.m. on July 10, 2012, the Special Master issued a further order by email (the Second July 10th Order) which provides:

A half-hour later, counsel for A10 submitted an email in response to the First July 10th Order. The email asserts, in pertinent part, that A10 would complete its production with respect to the disks provided by Mr. Menz on July 11th, but that the production might not be completed until after 5:00 p.m.

On July 10th, as permitted by the July 6th order, Plaintiffs' submitted a response to A10's court-ordered additional declarations. In pertinent part, Plaintiffs further submission asserts that: (1) the Martens declaration does not show that A10 had turned over all media of Szeto for analysis by the Mr. Menz, as there are 9 hard drives used by Szeto (plus the thumb drive) and A10 has only provided Mr. Menz with 6 devices; (2) the Martens declaration demonstrates no compliance with the ten-day deadline to turn over the metadata in light of the fact that Defendants held onto the MFT metadata for Menz Devices 1 and 2 for two months after receipt; (3) Defendants have not supplemented their written discovery responses to describe the responsive documents and to explain what has been produced, citing Plaintiffs' document requests 263 and 296; and (4) Defendants willfully disobeyed the 6:59 a.m. First July 10th Order by failing to turn over the Device 3 metadata until 4:30 p.m. The submission was supported by a document entitled “Timeline of Szeto Computer Media.”

On July 11, 2012, at 9:55 a.m., by email, counsel for A10 provided Plaintiffs and the Special Master with an Excel spreadsheet which counsel states is an inventory of the devices sent to Mr. Menz. The spreadsheet provides in pertinent part:

In light of the spreadsheet, A10 requested leave to send a brief replying to Plaintiffs' July 10th response to A10's court-ordered declarations. The request for leave to file an additional brief by 5:00 p.m. on July 11th was granted.

Nineteen minutes later, Plaintiffs objected to the inventory. Counsel for Plaintiffs' email states that in part:

Plaintiffs' request for a hearing regarding the inventory and a remedy therefor was granted, and a telephonic hearing was conducted at 2:00 p.m. on July 11, 2012. Prior to the commencement of the hearing on July 11, 2012, counsel for A10 provided Plaintiffs, by email, with the MFT metadata information files for two additional devices received from Mr. Menz on July 11th The first email accompanying A10's production of the files stated that “[g]iven the timing of this production from Mr. Menz we will forward all of these files to you, but we will reserve the right to claw back that which is personal, confidential or otherwise private.”

At 12:54 p.m. on July 11th, counsel for Plaintiffs emailed to the Special Master a “Revised Timeline of Szeto Computer Media to Include A10 Inventory.”

During the July 11th at 2:00 p.m. conference call with the Special Master, counsel for Plaintiffs requested and counsel for A10 agreed, subject to an agreement between the parties regarding the protection of all personal, confidential and/or private information on the drives, that Mr. Menz should be directed to image the devices provided to him by A10 and Szeto and to provide, as soon as possible, copies of such images to both Plaintiffs and Defendants.

After further meet and confer discussions, the parties agreed to protections related to private information on the drives. Consistent therewith, the Special Master issued an order directing Mr. Menz (as requested by Plaintiffs) to “immediately to begin imaging the A10 devices in his possession and to arrange for FedEx overnight delivery of those images to Plaintiffs' counsel and to Defendants' counsel on a rolling basis (or if they so indicate to him, to allow them to send couriers to pick the images up from him).”

On the morning of July 12, 2012, Mr. Menz provided a representative of Plaintiffs' expert with forensic images of four of the five devices that had been provided to him by Defendants. At 2:00 p.m. on July 13, 2012, Plaintiffs received an image of the fifth and final drive provided to Mr. Menz.

Fed.R.Civ.P. 37(b)(2) address sanctions for a failure to comply with a court order, and provides in pertinent part as follows:

Fed.R.Civ.P. 37(b)(2)(A).

“Rule 37(b)(2) contains two standards-one general and one specific-that limit a district court's discretion.” Navellier v. Sletten, 262 F.3d 923, 947(9th Cir. 2001). “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.” Id. (citation omitted). “Sanctions may be warranted under Federal Rule of Civil Procedure 37(b)(2) for failure to obey a discovery order as long as the established issue bears a reasonable relationship to the subject of discovery that was frustrated by sanctionable conduct.” Id. “Rule 37 sanctions were intended to punish evasion of pretrial discovery.” Wanderer v. Johnston, 910 F.2d 652, 655 (9th Cir. 1990) (internal quotations and citations omitted). Under Rule 37(b)(2), “the burden of showing substantial justification and special circumstances is on the party being sanctioned.” Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994) (citation omitted). “While a finding of bad faith is not a requirement for imposing [monetary] sanctions, good or bad faith may be a consideration in determining whether imposition of sanctions would be unjust.” Id.

“The inherent powers of federal courts are those that “are necessary to the exercise of all others.” Primus Automotive Financial Services, Inc. v. Batarse, 115 F.3d 644, 648 (9th Cir. 1997) (citations omitted). “The most common utilization of inherent powers is a contempt sanction levied to protect the due and orderly administration of justice and maintain the authority and dignity of the court.” Id. (internal quotations and citations omitted). “The district court's authority to impose sanctions under its inherent powers is broad, but not limitless.” Mendez v. County of San Bernardino, 540 F.3d 1109, 1131 (9th Cir. 2008). “Before awarding sanctions under its inherent powers ... the court must make an explicit finding that counsel's conduct constituted or was tantamount to bad faith.” Id. “The bad faith requirement sets a high threshold.” Mendez, 540 F.3d at 1132. “Bad faith ... includes a broad range of willful improper conduct.” Fink v. Gomez, 239 F.3d 989, 992 (9th Cir. 2001). “Sanctions are available for a variety of types of willful actions, including recklessness when combined with an additional factor such as frivolousness, harassment, or an improper purpose.” Id. “An attorney's reckless misstatements of law and fact, when coupled with an improper purpose ... are sanctionable under a court's inherent power.” Id. “Even in a case where the district court described a litigant's arguments as ‘totally frivolous,’ ‘outrageous’ and ‘inexcusable’ and called his behavior ‘appalling,’ we nonetheless refused to equate this characterization of conduct as synonymous with a finding of bad faith.” Mendez, 540 F.3d at 1131.

I. Failure to Obey the Szeto Media Orders (Dkt. Nos. 438, 465)

1. The Parties Contentions

*29 Plaintiffs in their moving papers contend that A10 and its counsel have violated the Court's orders regarding the forensic inspection of the Szeto hard drives. Plaintiffs contend that A10 and its counsel, in their production of data to Plaintiffs from the Szeto hard drives, have failed to provide Plaintiffs with the metadata required to be produced by the orders. In addition, Plaintiffs contend that, in violation of the Szeto orders, Defendants and their counsel: (1) did not advise Mr. Menz to follow the court's protocol, failed to report on the status of Mr. Menz's work, concealed the status of Mr. Menz's inspection efforts and failed to explain the nature of the data produced to Plaintiffs; and (2) spoliated the evidence produced by Mr. Menz by stripping the documents of their metadata before producing them in completely unusable form. Plaintiffs further note that Mr. Menz did not provide Plaintiffs with the required notices when producing materials to Defendants (or any information regarding his work)

In opposition to the motion, A10 contends that it did not violate the Court's protocol for the forensic inspection of Mr. Szeto's computers, and that every file that was not irrelevant or privileged was timely produced consistent with the protocol. A10 asserts that: (1) the appropriate devices were forwarded to Mr. Menz; (2) the packages Mr. Menz sent to A10 did not include any direction as to what he did, or what he was providing to A10; (3) A10 did its best to timely review the contents of the DVDs, cull irrelevant and privileged files, and produce the balance to Plaintiffs; (4) it was not until Plaintiffs filed their motion that A10 learned that the files produced to Plaintiffs did not include the metadata information Mr. Menz had provided in text files “spread intermittently through the actual documents on Mr. Szeto's devices;” (5) upon learning of the problem, A10 located the text files, correlated the previously-produced Bates numbered documents to the appropriate entries on the text files, created a single spreadsheet from the text files that would allow Plaintiffs to see the metadata that corresponded to each of the earlier-produced documents and notified Plaintiffs of the issue.

Plaintiffs' reply papers assert that: (1) A10's counsel's May 14th email admitted that Mr. Menz created metadata spreadsheets that were provided to A10, that A10 knowingly withheld these spreadsheets past the Court's deadline and that A10 modified the metadata before its untimely and incomplete production; (2) A10's May 17 spreadsheet appears to contain metadata for 29,543 files that originated from a single device, yet A10's April 9 and April 10 productions—which A10 claims to have created from the single March 29 production—included 125,841 files, and A10 offered no explanation for the significant discrepancy in their production and the metadata spreadsheet they generated; (3) A10 refused to provide the additional information requested by Plaintiffs on May 18th; (4) A10's opposition papers admit that A10's counsel were familiar with “details in the Court's Order,” had reviewed metadata files in Menz's March 29 production, and had concluded these metadata files were at least a “partial log of files” reflecting Menz's method of “organizing his work,” but engaged in no further inquiry and withheld these metadata files from their April 9, 10, and 26 productions; (5) A10's opposition declarations make no mention of the Menz spreadsheets discussed in the Mosko May 14 email, and instead discuss only metadata TXT files which were deemed “irrelevant;” (6) this is directly contrary to the May 14 email, in which A10's counsel claimed to have reviewed the data, were concerned about its accuracy, edited it, and then intended to withhold it until some unspecified later date; and (7) as such, the story A10 told in its opposition (that it did not know what it had and withheld it by accident) is inconsistent with the May 14 email.

Plaintiffs supplemental brief, submitted after the June 11 and 12 hearings, asserts that: (1) Mr. Menz confirmed at the hearing that he produced metadata and unaltered native files in his March 27 and April 12 productions; and (2) the MFT metadata produced by Mr. Menz at the hearing shows that someone at A10 deleted over 110,000 files from Devices 1 and 2 shortly after the court's appointment of the Special Master. Plaintiffs' supplemental brief contends that Mr. Menz's June 12th testimony makes clear that A10 failed to produce evidence to Brocade recovered by Mr. Menz and ordered by the Court. Plaintiffs assert that A10's Counsel improperly: (a) stripped the files of their original file names and replaced them with Bates ranges, (b) eliminated the embedded file metadata by “tiffing” more than 104,000 files and producing them to Brocade in TIFF format rather than native format; (c) withheld the MFT metadata altogether due to claimed confusion “despite the fact that Menz had provided it to A10 in a clear, organized manner that he customarily follows in such circumstances;” and (d) withheld the Menz file structure.

*30 Defendants' supplemental response asserts that there is no merit to Plaintiffs' claims of spoliation of thousands of files from devices 1 and 2 in August/September 2011. Defendants assert that: (1) Devices 1 and 2 are the drives attached to a computer Mr. Szeto used well into 2011; (2) A10 preserved a forensic image of Mr. Szeto's computer in November 2010 and that image is on Device 4; (3) because Mr. Menz has not yet analyzed Device 4, there is no merit to Plaintiffs' claims of spoliation. Defendants next assert that they did not convert files from Mr. Menz into TIFF format to hide the metadata – the TIFF files cited by Plaintiffs, which were provided to Plaintiffs by Defendants on April 10th, are unrelated to the results of Mr. Menz's forensic analysis. Finally, Defendants contend that they did not destroy any metadata from the Szeto files by replacing file names with Bates ranges. Defendants assert that: (1) both sides produce documents with Bates numbers to allow their identification in the litigation, and that is all Defendants did; (2) A10's counsel provided Plaintiffs a spreadsheet correlating the ranges of Bates numbers to the full file name, including its path; (3) thus, Plaintiff not only lost no data, they were able to use the Bates numbers to identify the documents; and (4) if Plaintiffs wanted the original metadata, they could get it from the files themselves, which were produced in native format, allowing Plaintiffs to conduct whatever analysis they wanted.

2. The Applicable Orders

On January 9, 2012, the Court granted Brocade's motion to compel a forensic inspection of Szeto's computer hard drives. McBride Decl., Ex. 11 (Dkt. No. 438). The January 9th order provides in pertinent part that “Brocade has shown that forensic imaging and analysis of the deleted files is relevant to ... testing the veracity of A10's claims as to whether any of Brocade's source code files on Mr. Szeto's hard drives were accessed while A10 was developing the source code for the AX Series devices, or whether any of Brocade's source code files on Mr. Szeto's hard drives were ever deleted.” Id., Ex„ 11 at 3. On February 7, 2012, the court issued a follow-up order setting forth the following forensic inspection protocol:

3. A10 and Szeto's Failure to Comply with the Szeto Media Orders

The complaint in this case was filed in August 2010. On September 15, 2011, Szeto provided the Court with a declaration stating in pertinent part that:

McBride Decl., Ex. 19, ¶ 3 (emphasis added)

Plaintiffs' motion to compel production of a forensic inspection of Szeto's computer hard drives was granted on January 9, 2012, and A10 and Szeto were ordered to provide such devices to Mr. Menz by February 9, 2012.

*31 While A10 provided Mr. Menz with four devices on February 9th, Szeto's thumb drive was not provided to Mr. Menz until between February 26 and 28, 2012. Szeto testified during his deposition that the Ron. S. directory on the thumb drive came from his A10 computer. Szeto's delinquent production of his thumb drive was a violation of the February 7th order. The delinquent production likewise casts significant doubt on the veracity of Szeto's carefully-worded September 15, 2011 declaration. Nonetheless, as discussed further below, the forensic inspection of the thumb drive does not appear to have occurred until after the filing of the present motion. As a result of the delay between Defendants' production of the thumb drive and the actual inspection of the thumb drive by Mr. Menz, Szeto's delinquent production of the thumb drive cannot be viewed as having harmed Plaintiffs.

The court's February 7th order requires A10 and Szeto to deliver to Mr. Menz by February 9, 2012 “for imaging all computers and portable or detachable hard drives used by Ron Szeto since December 21, 2004.” As was noted in the Special Master's July 6th order, the evidence presented by A10 in its opposition and supplemental opposition was insufficient for the Special Master to conclude that A10 and Szeto actually provided all computers/hard drives responsive to the order. The July 6th order thus required A10 and its counsel to provide declarations setting forth Defendants' efforts and counsel's efforts to locate to all computers and drives responsive to the February 7th order, and Defendants' production of same to Mr. Menz. The order provides that “[t]he declarations shall indicate whether A10 has provided Mr. Menz with “all computers and portable or detachable hard drives used by Ron Szeto since December 21, 2004.”

In response to the July 6th order, A10 has provided two additional declarations. Szeto's July 9, 2012 declaration states in pertinent part that he was asked to and “delivered each of my computers and other electronic storage devices that I had in my possession to Dennis Oshiba.” Szeto gave the computers and storage devices to Mr. Oshiba in around October 2010. See McBride Decl., Ex. 19. Szeto's July 9, 2012 declaration also states that he remembered and turned over to A10 a thumb drive in February 2012, and that “other than the computer I use at A10, I do not have any other computers or devices on which electronic files were stored in my possession.”

In addition, A10 offers a declaration from Mr. Martens, the attorney for A10 who was responsible for collecting each of the Szeto media devices and sending them to Mr. Menz. Mr. Martens declares that “[c]ounsel for A10 collected all existing computer or portable or detachable hard drives that Ron Szeto might have used since December 21, 2004,” and that “each of these devices was then sent to Mr. Menz for his forensic analysis.” Martens July 9, 2012 Decl., ¶ 3. The declaration sets forth A10's initial collection of electronic devices Szeto used or on which he saved files related to his work for A10; the provision of these devices Carlos Castaneda, a data recovery specialist; Mr. Marten's confirming with Szeto (after the Court's order granting the forensic inspection) that he had previously given each device that had the capacity to store electronic files to Mr. Castaneda; Mr. Castaneda delivering to Mr. Martens “all electronic devices that MDS had previously collected from Mr. Szeto”; and the subsequent discovery and production of the Szeto thumb drive. Id., ¶¶ 4-6. Mr. Marten concludes by declaring that “[o]ther than the five electronic devices discussed in this declaration, as the person responsible for collecting all electronic devices used by Mr. Szeto and sending them to Mr. Menz, I am not aware of any others that Mr. Szeto used to store electronic files since December 21, 2004.”0n June 10th, Plaintiffs argued that the Martens declaration does not provide an inventory of the Szeto media devices and does not demonstrate that all such devices were turned over to Mr. Menz. In reliance upon the chart attached to their brief (which cites to Szeto's interrogatory responses, Mr. Menz's written responses to question provided to the parties at the June 12th hearing, Mr. Menz's oral statements made at the June 12, 2012 hearing, and deposition testimony of Szeto and A10's 30(b)(6) witness, Kamat) Plaintiffs asserted that at least three of the devices use by Szeto are unaccounted for.

*32 In response to Plaintiffs' assertion of missing devices, A10 was ordered to provide an inventory of which Szeto computer hard drives correspond to each of the images on Devices 1-4 as labeled by Mr. Menz, A10 then sent an email to Plaintiffs and the Special Master with an attached “inventory” of the devices. The inventory is not attached to a declaration. The inventory gives “drive models” for each of the drives given to Mr. Menz, and provides a description of the drives. The inventory indicates that Mr. Menz was provided with the initial drive from Szeto's Lenovo T61 computer (Menz Drive 1), the replacement drive for the T61 computer (Menz Drive 2), drive from Szeto's Lenovo ThinkPad X220 (Menz Drive 3), and the thumb drive (Menz Drive 5). In addition, the inventory indicates that Menz Drive 4 contains images of drives: (1) an image of Szeto's Dell Inspiron (Menz Drive 4(a); (2) an image of Szeto's Toshiba Satellite (Menz Drive 4(b); and (3) an image of Menz Drive 1 taken in November 2010.

In response to A10's “inventory,” Plaintiffs provided the Special Master with a revised version of its timeline. Like the inventory, the revised timeline is not attached to a declaration. Plaintiffs' revised timeline, in pertinent part, asserts that A10's inventory is inconsistent with the serial numbers noted at the June 12th hearing by Mr. Menz regarding Device 1-5.

Finally on July 13th, after the conference call discussed below, Plaintiffs' counsel sent an email to counsel for Defendants and the Special Master at 8:36 a.m. stating in part:

Later in the day on July 13th, Plaintiffs' counsel sent a further email to counsel for Defendants and the Special Master states that “[t]he only motion that remains pending is the motion for an adverse inference instruction regarding Mr. Szeto. Plaintiffs continue to press that motion on the grounds stated in Tuesday's submission other than the contention that fewer than the requisite drives were submitted.”

The Special Master has reviewed the record presented with respect to the devices provided to Mr. Menz and concludes as follows. A10 and Szeto were required to deliver to Mr. Menz “for imaging all computers and portable or detachable hard drives used by Ron Szeto since December 21, 2004.” The order required A10 and Szeto to provide the original drives for imaging by Mr. Menz. Based upon what has been provided, it appears that A10 and Szeto should have provided Mr. Menz with seven drives:

The record presented reveals that A10 provided Mr. Menz with the following original devices:

Finally, the record presented reveals that A10 provided Mr. Menz with images of the following original drives:

Thus based upon the record presented to the Special Master, it appears that the only drives withheld from Mr. Menz were the original computers used by Szeto (nos.3 and 4 above) at his home and the new computer assigned to Mr. Szeto in late 2011 (no. 6). In light of this evidence, and consistent with counsel for Plaintiffs' email at 8:46 a.m. on July 13th, Plaintiffs “do not contend that there is any computer which should have been turned over but was not.” Accordingly, based upon the evidence presented and counsel for Plaintiffs' statement on July 13th, Defendants did not violate paragraph 2 of the February 7th order.

Finally, there is a clear conflict in the evidence presented between Mr. Menz's description of Devices 1-3 and the descriptions of Devices 1-3 in A10's “inventory.” This is undoubtedly prejudicial to Plaintiffs. However, because the Special Master has not been provided with copies of the drives, a final determination as to who is correct cannot be made in this order. The February 7th order did not specifically require an inventory of what was being produced to be provided by A10 to Mr. Menz or Plaintiffs. It clearly would have been helpful to all involved, but it was not required, and the failure to do so is not a violation of the February 7th order. As a result, the conflicting statements from A10 and Mr. Menz do not establish a further violation of paragraph 2 of the February 7th order.

Plaintiffs' motion asserts that Defendants and their counsel did not advise Mr. Menz to follow the court's protocol, failed to report on the status of Mr. Menz's work, concealed the status of Mr. Menz inspection efforts and failed to explain the nature of the data produced to Plaintiffs.

The evidence presented does not support Plaintiffs' assertions. While Defendants' counsel did not, as promised in an email to Plaintiffs' counsel and the Special Master, advise Plaintiffs when he received data from Mr. Menz, the Szeto media orders did not require such conduct. Instead, Mr. Menz was supposed to and failed to provide Plaintiffs with such information. The record reflects that Defendants produced responsive information to Plaintiffs within the time lines set forth in the protocol. Again, while it is true that Defendants did not explain the nature of the data produced to Plaintiffs, Mr. Menz likewise did not provide such information to Defendants. While unfortunate, Defendants' failure to provide Plaintiffs with information regarding the nature of the information produced does not amount to a violation of the court's orders or “bad faith” conduct.

Plaintiffs' supplemental brief asserts that the MFT metadata regarding Devices 1, 2 and 5 produced by Mr. Menz on June 12, 2012 shows that someone deleted over 110,000 files from Devices 1 and 2 in September 2011, shortly after the appointment of the Special Master.

*34 It is unclear from Plaintiffs' supplemental brief whether Plaintiffs are relying upon the deletion activity as support for their motion. Given the uncertainty as which drives are actually encompassed by what Mr. Menz and the parties are referring to as Devices 1 and 2, the impropriety of the deletion activity cannot be determined. Absent significant more information, the Special Master is unable to conclude for purposes of the present motion that the deletion activity identified by Plaintiffs was improper.

A significant portion of Plaintiffs' argument regarding Defendants' compliance with the Szeto media orders focuses upon Defendants' production on April 10, 2012 of TIFF images files purportedly responsive to the Szeto media orders. Plaintiffs argue that by producing the files in this manner, Defendants failed to produce the file system or embedded metadata required by the February 7th order.

Defendants' opposition to the motion was silent with respect to the issue of TIFF images. Defendants' opposition to Plaintiffs' supplemental brief, however, offers evidence to show that A10's April 10th production is unrelated to the results of Mr. Menz's forensic inspection, and is instead responsive to a request for production served by Plaintiffs at the end of discovery. See Holderfield's June 26, 2012 Decl., ¶ 4.

In sum, while it is strange that this issue was not addressed in Defendants' initial opposition, the record presented compels the conclusion that A10's April 10, 2012 production of TIFF images to Plaintiffs is unrelated to Mr. Menz's forensic inspection of the Szeto media. As such, Plaintiffs have failed to establish that the April 10th production violates the Szeto media orders.

The February 7th Order provides that “Mr. Menz shall recover from the mirror images all available and recoverable documents and files, including, but not limited to those files that were deleted,” and that “Mr. Menz shall provide the recovered files to counsel for Defendants, A10 and Ron Szeto in a reasonably convenient and searchable form, along with information showing when any files were created, accessed, copied, or deleted and the contents of deleted files that could not be recovered.”

On March 29, 2012, Mr. Menz provided A10 with files and documents from Device 1. Based upon the record presented, Mr. Menz provided A10 with the files and information he was able to recover that is required by the order. Mr. Menz provided Defendants with the required files in native format (thereby including the embedded metadata), and TXT files included the required MFT metadata information.

The February 7th order further provides that “(w)ithin 10 days of receipt, Defendants' counsel shall review the recovered materials for responsiveness to discovery requests and privilege, serve a privilege log, supplement their responses to Plaintiffs' discovery requests, and send to Plaintiffs' counsel all non-privileged responsive documents and materials.”

On April 9, 2012, Defendants provided Plaintiffs with documents from Mr. Menz's March 29, 2012 production to Defendants. Based upon the record presented, Defendants did not provide Plaintiffs with supplemental responses to Plaintiffs' discovery requests, and did not provide Plaintiffs with all responsive documents and materials, and therefore violated the February 7th order. With respect to the “documents and materials” provided, Defendants' initial production to Plaintiffs failed to include the MFT metadata provided by Mr. Menz in a TXT file, and failed to produce a copy of the responsive files without alteration to the filenames. Defendants' May 17, 2012 production to Plaintiffs of their “spreadsheet,” which contains the TXT files from Mr. Menz's April 29th production and links the Bates numbers to file names, appears to have rectified the deficiencies in Defendants' April 9th production. Given the fact that Defendants are only required to produce “responsive” non-privileged documents and materials, and the fact that TIFF images produced by Defendants are not responsive to the Szeto media orders, the fact that the spreadsheet does not correspond to the size of A10's April 2012 productions does not compel a conclusion that the spreadsheets are missing responsive information. However, with respect to the supplemental responses to discovery requests, the fact that Defendants produced additional documents does not serve to excuse the additional requirement that Defendants supplement their responses to Plaintiffs' discovery requests, e.g., formal amended written responses to applicable requests for production.

*35 On April 16, 2012, Mr. Menz provided A10 with files and documents from what he terms Device 2. Based upon the record presented, Mr. Menz provided A10 with responsive files in native format (thereby including the embedded metadata), but did not provide A10 with any TXT files (which would have included the required MFT metadata information). As a result, Mr. Menz's April 16th production was incomplete. Mr. Menz was first advised of this problem during the June 12th hearing. Mr. Menz, however, provided the parties with MFT metadata for Menz Drive 2 at the June 12th hearing. On April 26, 2012, Defendants provided Plaintiffs with documents from Mr. Menz's April 16th production. In light of the incomplete nature of Mr. Menz's corresponding production, the lack of MFT metadata as part of Defendants' April 26th production to Plaintiffs is not a violation of the order by A10. However, based upon the record presented, Defendants did not provide Plaintiffs with supplemental responses to Plaintiffs' discovery requests, and with respect to the files produced, Defendants failed to produce a copy of the responsive files without alteration to the filenames. As a result, Defendants' April 26, 2012 production did not comply with the February 7th order.

As set forth above, other than MFT metadata for Device 5, Mr. Menz did not provide information from Devices 3, 4 and 5 to Defendants until July 9, 2012, approximately five months after he received Devices 3 and 4 (and four months after he received Device 5). As a result of this delay, Defendants agreed that, subject to certain limitations, Plaintiffs should be provided with copies of all the devices provided to Mr. Menz. Plaintiffs received all of the devices on July 12 and 13, 2012. The long delay in Plaintiffs obtaining information from these Szeto media devices is unfortunate and clearly prejudicial to Plaintiffs' trial preparation. The delay, however, was not the result of Defendants' misconduct or any failure by Defendants to obey a court order. Accordingly, Plaintiffs have failed to establish any violation of the Szeto media orders by Defendants with respect to Devices 3, 4 and 5.

Consistent with the foregoing, Plaintiffs have established the following violations of the Szeto media orders: (1) Szeto's delinquent production of his thumb drive; and (2) Defendants' failure, on April 9th and April 26th, to provide Plaintiffs with all the information to which they were entitled pursuant to the February 7th order: the MFT metadata (April 9th production); supplemental discovery responses (both productions); and unaltered filenames (both productions).

II. The Requested Sanctions

Plaintiffs' motion seeks both evidentiary and monetary sanctions as a result of Defendants' violations of the court's orders. In their reply papers, Plaintiffs for the first time request terminating sanctions.

A. Terminating Sanctions

Plaintiffs' reply contends that the only adequate remedy for Defendants' withholding of metadata for two months and their failure to cure the withholding of metadata is a default against A10 and Szeto on the trade secret and copyright claims (and an adverse inference against the other Defendants).

When considering if dismissal or default is appropriate as a Rule 37 sanction, “the court is to consider: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to [the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Wanderer, 910 at 655 (internal quotations and citations omitted). “Where a court order is violated, the first and second factors weigh in favor of default, while the fourth weighs against default; the third (risk of prejudice to the party seeking sanctions) and fifth factors (availability of less drastic actions) are therefore decisive.” Guifu Li v. A Perfect Day Franchise, Inc. (N.D. Cal., Mar. 19, 2012, 5:10-CV-01189-LHK) 2012 WL 929784 *16. A party suffers prejudice if the opposing party's “actions impair the [party's] ability to go to trial or threaten to interfere with the rightful decision of the case.” Henry v. Gill Industries, Inc., 983 F.2d 943, 948 (9th Cir. 1993) (citation omitted). “Delay alone, without a focus on its effects, will not justify dismissal or default.” Wanderer, 910 F.2d at 656. “Fairness demands that the severe sanction of default may not be imposed under Rule 37(b)(2) in the absence of willfulness, bad faith, or fault.” Fjelstad v. American Honda Motor Co., Inc., 762 F.2d 1334, 1340 (9th Cir. 1985). “Disobedient conduct not shown to be outside the control of the litigant is all that is required to demonstrate willfulness, bad faith, or fault.” Henry, 983 F.2d at 948 (citation omitted).

*36 In brief, the violations of the court's orders established by Plaintiffs do not justify a default sanction. Plaintiffs have failed to establish that the violations of the Szeto media orders by A10 and Szeto pose a substantial risk of prejudice to Plaintiffs, or that less drastic actions would not remedy the asserted violations. Accordingly, Plaintiffs' request for a default sanction against A10 and Szeto is DENIED.

B. Evidentiary Sanctions

Plaintiffs' motion seeks the following evidentiary sanctions: (a) an order striking all portions of the Klausner report relying upon a forensic analysis of the Szeto media and precluding any such opinions at trial;[4] (2) an order precluding the A10 Defendants from offering any metadata or other forensic information from the Szeto media, or any other opinions founded thereon; (3) an order prohibiting A10 from cross-examining Brocade's witnesses regarding the hypothetical contents of media it did not produce; and (4) a finding and adverse inference instruction to be read to the jury as follows:

1. Are Defendants' Violations “Substantially Justified or Harmless?”

Defendants contend that their delay in producing text file information was an honest mistake that resulted from Mr. Menz's confusing production and Plaintiffs' intentional delay in addressing the issue (i.e., not immediately notifying Defendants of the problem), so sanctions are not warranted.

Plaintiffs contend that A10 failed to prove substantial justification for its actions, or that its noncompliance was harmless. “Evidentiary preclusion is a harsh sanction that generally is not imposed where the failure to provide discovery was either substantially justified or harmless.” Rooney v. Sierra Pacific Windows (N.D. Cal., June 1, 2011, 10-CV-00905-LHK) 2011 WL 2149097 *3. As previously noted, due to the fact that Mr. Menz did not inspect the Szeto thumb drive until after the filing of the motion, Szeto's three-week delay in producing his thumb drive is harmless.

Defendants have failed to establish that their failure to produce the MFT metadata with their April 9th production to Plaintiffs was substantially justified or harmless. The court's January 9, 2012 order clearly indicated that Plaintiffs were entitled to the forensic inspection of the Szeto media in order to determine “the veracity of A10's claims as to whether any of Brocade's source code files on Mr. Szeto's hard drives were accessed while A10 was developing the source code for the AX Series devices, or whether any of Brocade's source code files on Mr. Szeto's hard drives were ever deleted.” The February 7, 2012 order also clearly indicates that as part of the forensic inspection, Plaintiffs were entitled to “information showing when any files were created, accessed, copied, or deleted and the contents of deleted files that could not be recovered.”

*37 Defendants attempt to blame its non-production of the text files included in Mr. Menz's March 29th production on Mr. Menz is unpersuasive. Ms. True saw the text files in Mr. Menz's production, and apparently determined that the text files were a partial log of files. While Ms. True's conclusion that the text files were not part of the work Mr. Menz was asked to do is theoretically acceptable, it is not acceptable is that Ms. True did not query her superiors as to the information and/or that her superiors at the firm, including Mr. Mosko, apparently failed to explain to Ms. True A10's obligation to produce metadata from the DVDs, and what that information might look like. While Mr. Menz's production did not include instructions or explanation, if A10 was truly confused by Mr. Menz's production, it could have contacted its own experts regarding Mr. Menz's production, or advised the Special Master of the problems. Mr. McNeely's failure to determine the relevance of the text files, or to ask Mr. Mosko about them, is likewise unacceptable. After receipt of Plaintiffs' motion, Mr. Mosko's May 14 and 17, 2012 emails to Plaintiffs' counsel suggest that A10 and its counsel was aware of the fact that metadata was included in Mr. Menz's first production, and that A10 nonetheless elected not to produce the metadata. A10's initial, unsworn, responses to the motion are inconsistent with the explanations included in the declarations supporting its initial opposition papers, which appear to deny knowledge of the presence of metadata. In short, Defendants have failed to show that their failure to produce the text files included in Mr. Menz's March 29th production was substantially justified. Defendants likewise have failed to establish that its violation of the order with respect to the MFT metadata was harmless. The failure to produce the MFT metadata on April 9th resulted in the filing of the present motion, and delayed the usefulness of the data provided by A10, thereby prejudicing Plaintiffs.

Finally, Defendants have failed to establish that their failure to provide supplemental responses on April 9th and 26th was substantially justified or harmless.

2. Propriety of Evidentiary Sanctions

In assessing the propriety of a district court's preclusion of witness testimony, a court considers “the following factors: (1) the party's explanation for the failure to comply with the discovery order; (2) the importance of the testimony of the precluded witness; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance.” Reilly v. Natwest Markets Group Inc. (2d Cir. 1999) 181 F.3d 253, 269.

While Defendants' conduct was not substantially justified, the Special Master is not persuaded that Defendants' misconduct justifies the imposition of evidentiary sanctions. Based upon the record presented, Plaintiffs agree that with the exception of the thumb drive, Defendants produced the relevant drives or images thereof to Mr. Menz in a timely fashion. As noted above, the delay in producing the thumb drive did not harm Plaintiffs. Defendants' timely produced responsive materials from Device 1 to Plaintiffs on April 9, 2012, Plaintiffs did not assert any inadequacies in the production until April 30, 2012, when Plaintiffs advised Defendants that they intended to serve a motion for sanctions. Defendants had rectified the inadequacies in their productions by May 17, 2012. While Defendants' failure to produce the text files delayed Plaintiffs' receipt of necessary information from Device 1 and thus delayed Plaintiffs' trial preparation, the evidence presented to date does not reveal the importance of the delinquently produced information. Consistent therewith, while Plaintiffs were prejudiced, the prejudice actually suffered by Plaintiffs as a result of Defendants' delayed production of the MFT metadata from Device 1 and the delayed production of the actual filenames is uncertain. Likewise, the failure to produce the court-ordered supplemental discovery responses also prejudiced Plaintiffs' ability to prepare for trial. However, it is also clear that the amount of prejudice to Plaintiffs resulting from Defendants' conduct is dwarfed by the prejudice to Plaintiffs resulting from the unexpected amount of time consumed by Mr. Menz's forensic inspection of the drives. Plaintiffs' inability to review information from Devices 3, 4 and 5 until July 12 and 13, 2012 was not the result of Defendants' misconduct. Accordingly, based upon the record presented, Plaintiffs' request for evidentiary sanctions is DENIED.

C. Monetary or Other Sanctions

Plaintiffs' motion also seeks the following monetary sanctions against Defendants and their counsel: (1) all fees incurred by the Rule 706 expert, Mr. Mark Menz, for any analysis related to the Szeto media; and (2) all attorneys' fees and costs incurred by Brocade in connection with Brocade' multiple motions to obtain testimony about, access to, and production of the contents of the Szeto media. In light of the rather limited nature of Defendants' misconduct, the requested monetary sanctions are vastly overbroad. Accordingly, Plaintiffs' motion for monetary sanctions arising from A10's failure to comply with the Szeto media orders is DENIED.

*38 Nonetheless, given A10's failures to comply with the February 7th order and the prejudice to Plaintiffs necessarily resulting therefrom, Plaintiffs' motion for sanctions against A10 for failure to comply with the Court's orders regarding the Szeto computer media is GRANTED IN PART. The Special Master finds under the circumstances that the following orders are just:

For the reasons set forth above,

IT IS SO ORDERED.

Dated: July 15, 2012

Later on July 6th, the Special Master emailed Mr. Menz to request that “all future deliveries by hand delivery if possible or at least by overnight service.”

Although the evidence provided to the Special Master does not clearly indicate which of the X220's was provided to Mr. Menz, counsel for A10's argument at the July 11, 2012 clearly indicated that the computer currently being used by Szeto is the computer that was not produced.

Defendants' opposition to the motion states that “A10 agrees that Mr. Klausner will not provide trial testimony on the forensic analysis Brocade objects to.”