I. INTRODUCTION

Before the Court are Plaintiffs’ second, third, fourth, and fifth petition for attorneys’ fees and costs against third-party witness Lijie Cui. (Second Pet., ECF No. 423; Third Pet., ECF No. 460; Fourth Pet., ECF No. 489; Fifth Pet., ECF No. 514.) These petitions arose out of Ms. Cui’s violation of the Court’s orders regarding preservation of ESI data in this above-captioned matter, which spanned for nearly a year—from the Court’s initial preservation order issued on March 26, 2021 (“Preservation Order,” ECF No. 307) that was later amended (“Amended Preservation Order,” ECF No. 310), until Cui’s purging of her contempt on March 10, 2022 (Min., ECF No. 510). As a result of Ms. Cui’s consistent noncompliance with the Court’s numerous orders, the Court awarded Plaintiffs attorneys’ fees and costs as part of civil contempt sanctions and permitted Plaintiffs to submit fee petitions establishing their entitlement to the amount. Having thoroughly reviewed Plaintiffs’ second, third, fourth, and fifth petitions and all relevant briefing, the Court GRANTS those petitions, but for the total lesser amount of $182,637.53 for the reasons set for below.

II. LEGAL STANDARD

As part of a civil contempt proceeding, the Court may award compensatory damages for remedial purposes. Koninklijke Philips Elecs. N.V. v. KXD Technology, Inc., 539 F.3d 1039, 1042 (9th Cir. 2008); see United Mine Workers v. Bagwell, 512 U.S. 821, 829 (1994) (noting that a contempt fine is remedial if it “compensate[s] the complainant for losses sustained.”). Such compensatory sanctions must be limited to actual damages incurred as a result of the violation. United States v. United Mine Workers of Am., 330 U.S. 258, 304 (1947) (stating that a compensatory fine must “be based upon evidence of complainant's actual loss, and his right, as a civil litigant, to the compensatory fine is dependent upon the outcome of the basic controversy”). Compensatory damages include attorneys' fees and costs. Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1195 (9th Cir. 2003).

Once the Court has determined that attorneys’ fees and costs should be awarded, it must determine the reasonableness of the proposed amounts in a two-step process. First, “[d]istrict courts must calculate awards for attorneys’ fees using the ‘lodestar’ method,” which requires multiplying the hours “reasonably expended on the litigation by a reasonable hourly rate.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008).

In order to determine if an hourly rate is reasonable, the court must identify the prevailing hourly rate for the relevant community, and then it must determine the appropriate market rate for the attorney based on “the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation.” Id. at 979 (internal quotation omitted).

To determine the reasonableness of the number of hours worked, the court cannot simply accept the hours presented by the attorney requesting fees, but instead must require that party prove that it exercised billing judgment for the hours billed. Vogel v. Harbor Plaza Center, LLC, 893 F.3d 1152, 1160 (9th Cir. 2018); see also Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (“[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.”). “The party opposing the fee application has a burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits.” Gates v. Deukmejian, 987 F.2d 1392, 1397–98 (9th Cir. 1992). “A district court should exclude from the lodestar amount hours that are not reasonably expended because they are ‘excessive, redundant, or otherwise unnecessary.’” Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (quoting Hensley, 461 U.S. at 434). Time spent establishing the right to and amount of the fee should be included in the lodestar calculation. Camacho, 523 F.3d at 981.

The lodestar amount is presumptively reasonable, but the court can adjust it upwards or downwards based on other considerations. Van Gerwen, 214 F.3d at 1046. Thus, after calculating the lodestar figure, the second step is for the court to assess the rate for reasonableness based on the Kerr factors. Morales v. City of San Rafael, 96 F.3d 359, 363–64 (9th Cir. 1996). The twelve Kerr factors are: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976). Only in rare cases should the rate be adjusted. Morales, 96 F.3d at 363–64.

III. DISCUSSION
Plaintiffs have submitted four separate petitions for attorneys’ fees and costs as sanctions for Cui’s noncompliance with the Court’s preservation orders. (See Second Pet., ECF No. 423; Third Pet., ECF No. 460; Fourth Pet., ECF No. 489; Fifth Pet., ECF No. 514.) The Court analyzes each petition separately in turn.

A. Second Petition

On August 25, 2021, the Court found Cui in contempt at an Order to Show Cause hearing for clearly and unambiguously violating the Court’s Amended Preservation Order, which required that Cui within fourteen days of the order “make a forensic copy of any and all cellphones that she uses or has used since March 26, 2020, including any and all data from her WeChat account, and preserve all other ESI Data[.]” (Am. Preservation Order at 2; Order Finding Cui in Contempt, ECF No. 411.) Specifically, the Court found that Ms. Cui blatantly disregarded the Court’s order by continuously deleting her WeChat messages, as admitted by herself in her own deposition, even though the Court’s Amended Preservation Order required that she preserve all ESI data. (Order Finding Cui in Contempt at 2.) Furthermore, while the Amended Preservation Order initially required Ms. Cui’s attorney to file a certification with the Court “that describes the search to identify any ESI Data, details the ESI Data that exists, and affirms that a forensic copy of any cellphones, including WeChat data, has been made and that all other ESI Data has been preserved,” the Court on June 3, 2021 ordered Ms. Cui directly and personally to submit to Plaintiffs a signed declaration written in Chinese and a certified translation of her declaration detailing her efforts to preserve ESI data. (Min., ECF No. 327.) Nonetheless, in her declaration (Cui Decl., ECF No. 335), Ms. Cui failed to identify that she had a personal computer, previously owned a Samsung phone between March 26, 2020 and March 31, 2021, and had an email address that she used—all in clear disregard of the Court’s order. (See Order Finding Cui in Contempt at 2.) The Court therefore ordered Ms. Cui to pay Plaintiffs attorneys’ fees and costs for pursuing the order to show cause. (Id. at 5.)

Plaintiffs submitted their second petition for attorneys’ fees and costs against Cui on September 14, 2021, seeking a total of $125,023.20 in fees for 336.99 hours expended by three attorneys (Aaron Halegua, Bruce Berline, Times Wang) and two full-time law student interns (Nanami Hirata and Qianfeng Lin), and $3,128.30 in costs. (See Second Pet., ECF No. 423.) Plaintiffs also seek an additional amount for 1.20 hours Halegua expended in the reply brief. (“Second Reply,” ECF No. 434.)

In opposition, instead of opposing specific requested rates or hours, Cui challenges the entire second petition for attorneys’ fees as a whole as stemming from a “counterfeit lawsuit” that never had any legal basis. (“Second Opp’n,” ECF No. 430.) Cui argues that all the fees requested arise from the original January 11, 2021 subpoena against Cui that had no legal basis because Cui was never a party to the lawsuit, and any discovery is no longer relevant in the case because Plaintiffs already settled with Defendants Gold Mantis Construction Decoration (CNMI), LLC and MCC International Saipan Ltd., Co., and default judgment was entered against Defendant Imperial Pacific International (CNMI), LLC (“IPI”). (Id. at 10.) Cui also challenges any efforts to subpoena Howyo Chi. (Id. at 7-8.)

However, the Court finds Cui’s sweeping opposition to the second petition for attorneys’ fees unpersuasive. These fees imposed are sanctions for Cui’s violation of the Court’s Amended Preservation Order, not the January 11, 2021 subpoena. Moreover, when Plaintiffs first moved for the preservation order, the reason for doing so was for preserving discovery for purposes of satisfaction of judgment and collection efforts against Defendant IPI, as the Court made clear that it intended to issue default judgment against IPI. (Mot. for Preservation at 1-2, ECF No. 303.) It also became clear by that point that IPI was struggling to pay its creditors. Plaintiffs thus sought discoverable materials from Cui, who was at the time the President of Imperial Pacific International Holdings Ltd. (“IPIH”) —the parent company of IPI and the company that routinely paid IPI’s debts. (Id. at 3.) The Court therefore granted Plaintiffs’ motion, given that third-parties have no duty to preserve evidence absent a court order, Bright Sols. for Dyslexia, Inc. v. Doe 1, No. 15-cv-01618C, 2015 WL 5159125, at *2 (N.D. Cal. Sept. 2, 2015), and given that (1) there was a concern that relevant ESI Data, including the information on Ms. Cui’s cell phone, will not be maintained in the absence of a preservation order; (2) irreparable harm is likely to result absent an order directing preservation, and (3) that Ms. Cui is capable of preserving the evidence in question, see Am. Preservation Order at 2 (citing Bright Sols., 2015 WL 5159125, at *2). See also Am. LegalNet, Inc. v. Davis, 673 F. Supp. 2d 1063, 1071 (C.D. Cal. 2009) (noting that “[f]ederal courts have the implied or inherent power to issue preservation orders as part of their general authority to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”) (cleaned up); Textron Fin. Corp. v. Gallegos, No. 15-cv-1678, 2016 WL 4077505, at *3 (S.D. Cal. Aug. 1, 2016) (noting that the scope of postjudgment discovery under federal law is “very broad” and that “[d]iscovery into a third party’s assets is permissible where the relationship between the judgment debtor and the nonparty is sufficient to raise a reasonable doubt about the bona fides of the transfer of assets between them.” (internal quotation marks and citations omitted)).

However, when IPI appealed this Court’s Decision and Order granting Plaintiffs default judgment against IPI (see Not. of Appeal, ECF Nos. 416, 417), it became even more apparent why preservation of Ms. Cui’s ESI data was necessary: in case the decision was reversed by the Ninth Circuit and the case had to proceed on the merits. Good and sufficient reasons therefore existed for the preservation of Ms. Cui’s ESI data.

Accordingly, Plaintiffs are properly entitled to attorneys’ fees and costs as a result of Cui’s noncompliance with the Court’s Amended Preservation Order. Having determined so, the Court now must determine whether Plaintiffs’ request for those fees and costs are reasonable.

1) Reasonable Rate

Plaintiffs seek fees for hours expended by three attorneys (Aaron Halegua, Bruce Berline, Times Wang) and two full-time law student interns (Nanami Hirata and Qianfeng Lin). The Court has already previously determined that $400 per hour for Aaron Halegua, $300 per hour for Bruce Berline, and $350 per hour for Times Wang are reasonable hourly rates. (See Am. Order Granting Pls.’ First Mot. for Attorneys’ Fees and Costs against IPI at 8, 12-13, ECF No. 108; Order Granting Pls.’ Second Mot. for Attorneys’ Fees at 6, ECF No. 232.) However, Plaintiffs now seek an upward rate of $450 for attorney Halegua, because Halegua would be entering his 12th year of legal practice as of September 2020, two years have elapsed since the initial fee petition that the $400 rate was based off of, and Halegua has further developed his expertise on human trafficking law over those two years— which has been recognized by many individuals and organizations. (Second Pet. at 5-6; Halegua Second Decl. ¶ 3, ECF No. 423-1.) Plaintiffs contend that this upward adjustment of 12.5 percent is comparable to increases based off of the Laffrey matrix—which sets a rate of $661 for attorneys with 8-10 years of experience in 2019-2020 but $759 for attorneys with 11-20 years of experience in 2020- 2021, for a 14.8 percent increase—and the USAO matrix—which sets an hourly rate of $433 for attorneys with 8-10 years of experience in 2019-2020 but a rate of $532 for attorneys with 11-15 years of experience in 2020-2021, for an increase of 22.8. (Second Pet. at 5-6.)

While the Court commends Halegua’s work in his field, the Court does not find that an upward adjustment is reasonable or warranted here. Notably, the legal issues involved in this matter with thirdparty witness Cui predominantly involved discovery and contempt issues and were unrelated to the underlying substantive claims regarding human trafficking. Hours expended on ensuring compliance with Court orders against Ms. Cui therefore did not require any additional specialized expertise or skills Halegua may have gained in human trafficking—let alone any expertise in human trafficking law, which largely accounted for Halegua’s $400 rate in the first place. Moreover, the Court was generous when it awarded Halegua a rate of $400. Based on Halegua’s own declaration submitted with Plaintiffs’ first petition for attorneys’ fees in September 2019, Halegua was awarded $250 per hour by the Eastern District of New York after practicing for six years and was awarded $300 by the Southern District of New York in mid-2018. (Halegua Decl. ¶¶ 24-25, ECF No. 63.) Less than two years after this award of $300, the Court awarded him an hourly rate of $400 in May 2020. (See Am. Order, ECF No. 108.) The Court therefore finds that an upward adjustment to $450 is unreasonable, and the Court will award Halegua at the hourly rate of $400. For the same reasons, the Court will deny Plaintiffs’ request for an increased rate of $450 for Halegua in the third, fourth, and fifth petitions. (See Third Pet. at 4; Fourth Pet. at 2; Fifth Pet. at 3.)

As to the two law student interns, Nanami Hirata at the time of working with Halegua was a rising second-year law student at Harvard Law School, received a B.A. from George Washington University, worked for over two years as a paralegal at Foley Hoag, LLP in Washington, D.C., and is fluent in Japanese and proficient in Spanish and Mandarin Chinese. (Halegua Second Decl. ¶ 9, ECF No. 423-1.) Qianfeng Lin was also a rising second-year law student at Harvard Law School, who obtained a Masters in Social Work from Columbia University and a Bachelor’s Degree from the Shanghai University of International Business and Economics, and is a native Chinese speaker. (Id.) Plaintiffs seek a rate of $160 per hour for these two law student interns. (Second Pet. at 6.) However, the Court in its recent decision and order awarding Plaintiffs’ attorney fees against IPI found that $130 was a reasonable rate for the full-time law student interns working with Halegua. (Decision and Order Awarding Att’y Fees Against IPI at 8-11, ECF No. 522.) For the same reasons as discussed in that decision and order, the Court finds that a rate of $130 is reasonable for Nanami Hirata and Qianfeng Lin.

2) Reasonable Hours

Plaintiffs seek 219.32 hours for Aaron Halegua, 46.87 hours for Bruce Berline, 6.78 hours for Times Wang, 35.50 hours for Qianfeng Lin, and 29.72 hours for Ninami Hirata, for a total of 338.19 hours. (Second Pet. at 7; Second Reply at 3.) In support of their hours, Plaintiffs included the declarations of attorneys Halegua and Berline. (See Halegua Second Decl., ECF No. 423-1; Berline Second Decl., ECF No. 423-2.) Plaintiffs also included contemporaneous time records for each individual. (See Halegua Second Timesheet, App’x A to Halegua Second Decl. ¶ 5, ECF No. 423-1; Berline Second Timesheet, App’x A to Berline Second Decl. ¶ 5, ECF No. 423-2; Wang Timesheet, App’x B to Halegua Second Decl. ¶ 8, ECF No. 423-1; Lin Timesheet, App’x C to Halegua Second Decl. ¶ 11, ECF No. 423-1; Hirata Timesheet, App’x D to Halegua Second Decl. ¶ 11, ECF No. 423- 1.) Plaintiffs’ request excludes hours expended by law student Robert Vinson, hours that were excessive, and some meeting hours, and only includes 50 percent of travel time for Berline. (Halegua Second Decl. ¶ 8, 11-13; Berline Second Decl. ¶ 5.)

Having thoroughly reviewed the timesheets, the Court finds most of the hours requested by Plaintiffs, which include hours for reviewing reports, investigating, obtaining multiple declarations, filing subpoenas, preparing for and attending hearings and depositions, researching and preparing for multiple status reports, preparing briefs for the privilege motions, filing stipulations, and teleconferencing, all as reasonable hours expended as a result of trying to get Cui to comply with the Court’s preservation order. To the extent that Cui also appears to object to any hours expended on attempting to subpoena and depose Howyo Chi (see Second Opp’n at 8), the Court finds that the hours expended during this period for attempting to depose Howyo Chi is reasonable, given that Chi was directly involved with and had personal knowledge of the preservation efforts as Cui’s personal interpreter. However, the Court will exclude from Halegua’s requested hours the 0.30 hours expended on August 11, 2021 reading Ping Shun filings regarding Cui’s involvement in IPI’s affairs; the 0.78 hours on August 23, 2021, 0.08 hours on August 24, 2021, and 0.13 hours expended on August 24, 2021 teleconferencing with attorney Samuel Mok regarding Cui's role in Ping Shun and IPI’s affairs; as well as the 0.2 hours expended on August 24, 2021 reviewing the Gray case regarding Cui’s involvement in HR decisions. The Court finds that the time expended on those other cases have no relation to Cui’s efforts to preserve ESI data in accordance with this Court’s orders for this abovecaptioned matter. The Court will therefore exclude 1.49 hours from Plaintiffs’ request for Halegua, and award Plaintiffs for 217.83 hours expended by Halegua, 46.87 expended by Berline, 6.78 hours expended by Wang, 35.5 hours expended by Lin, and 29.72 hours expended by Hirata.

3) Lodestar Amount

In sum, the Court will award Plaintiffs’ the following amount in attorneys’ fees for their second petition:

Second Petition

Rate Hour Total

Aaron Halegua $400 217.83 $87,132.00

Bruce Berline $300 46.87 $14,061.00

Times Wang $350 6.78 $2,373.00

Qianfeng Lin $130 35.5 $4,615.00

Nanami Hirata $130 29.72 $3,863.60

Total $112,044.60

4) Costs

As to costs, Plaintiffs initially sought $5,465.89 in costs, which included $2,337.59 in invoice to TransPerfect. (Second Pet. at 9.) However, Cui has since paid Plaintiffs for the TransPerfect fees, such that Plaintiffs only seek $3,128.30 in costs for the second petition. (Notice, ECF No. 499.) Plaintiffs seek costs for hearings transcripts and audio recordings; the deposition of Ms. Cui, including translation costs; service of subpoenas; witness fees; photocopies and scanning; and PACER charges. The costs are supported by the declarations of Halegua and Berline (see Halegua Second Decl. ¶ 15; Berline Second Decl. ¶ 6), as well as a list of costs (App’x B to Berline Second Decl. ¶ 6, ECF No. 423-2) and copies of invoices (App’x C to Berline Second Decl. ¶ 6, ECF No. 423-2).

Having reviewed Plaintiffs’ request, the Court finds that these costs are reasonable and necessary and stem directly as a result of Cui’s noncompliance with the Court’s preservation orders. See 28 U.S.C. § 1920 (permitting fees for printing, docketing, making copies, and obtaining transcripts to be taxable as costs); 28 U.S.C. § 1821 (allowing recoverable fees for a witness’s attendance to $40 per day plus a travel allowance).

The Court therefore awards Plaintiffs’ attorneys’ fees and costs in the total amount of $115,172.90 for their second petition.

B. Third Petition

After the Court found Cui in contempt on August 25, 2021, the Court ordered that Cui file an amended sworn statement with the Court within five days detailing a list of things, including: any and all ESI data that she has created or used since March 26, 2021; all telephone numbers linked to her WeChat account(s); “a description of all mobile phones, including the Samsung phone, used by Ms. Cui since March 26, 2020, the dates they were used, and their current location”; a description of all SIM cards used by Ms. Cui since March 26, 2020; and a description of all ESI backups, including iCloud accounts, used by Ms. Cui since March 26, 2020. (Order Finding Cui in Contempt at 3-4; ECF No. 411.) The Court also ordered that Cui provide proof of her rose gold iPhone that was purchased in May 2021; immediately turn over her personal computer to a computer company; as well as “immediately turn over any remaining SIM cards and other devices that she has used to create or store ESI Data since March 26, 2020 to Plaintiffs and provide all applicable passwords, to be sent to TransPerfect, to make forensic images of all available ESI Data.” (Id. at 4.) Cui was additionally ordered to file within 14 days a sworn statement from TransPerfect detailing its findings, and her counsel was ordered to file a certification of compliance with this Court within 15 days. (Id. at 4-5.) In issuing its order, the Court warned Cui that failure to comply with the Court’s order would result in sanctions of $1,000 per day to be paid to this Court until she fully complied, and warned her of a potential imprisonment sanction. (Id.)

Cui subsequently filed an amended declaration (ECF No. 414) and a second amended declaration (ECF No. 426), tendered her computer (ECF No. 413), and provided proof of purchase of her May 2021 rose gold iPhone (ECF No. 415-1). On September 29, 2021, Plaintiffs filed a status report with this Court, arguing that the Court should impose incarceration due to Cui’s failure to comply with the Court’s orders. (Status Report, ECF No. 429.) To highlight a few, Plaintiffs argued that Ms. Cui: still had not tendered her Saipan SIM card that she used during the relevant period of the Amended Preservation Order, failed to explain why her tendered phone was wiped clean on March 21, 2021 or how it was restored, failed to disclose her QQ email address, failed to mention of any ESI backups, and failed to explain why the SIM card she sent to TransPerfect was a new SIM card. (Id.) Plaintiffs also argued that other people have seen Ms. Cui using a different rose gold cell phone in 2020 that was different that the silver iPhone that she tendered to TransPerfect, and that the phone she tendered had a single SIM card slot while evidence suggests that the phone she used during the relevant period had a dual SIM card slot. (Id. at 5.) In response to Plaintiffs’ status report, counsel for Cui opposed a contempt finding, arguing that Cui substantially complied. (Cui Response, ECF No. 436.)

The Court held the status conference on October 6, 2021 (Min., ECF No. 437), during which time it set the matter for an evidentiary hearing on the issue regarding the existence of a rose gold cell phone during the period subject to the Court’s preservation order. The reason for this was because there were disputed facts regarding whether she properly tendered the correct phone subject to the preservation order and tendered the proper SIM. During the hearing, for example, Cui indicated to the Court that the iPhone X tendered to TransPerfect was in fact the phone with a dual SIM slot (even though she only used one SIM in it), and that the SIM card she tendered was her old Saipan SIM, but she merely placed it in the holder from the new Saipan SIM. Discrepancies also arose regarding whether there were any backups and whether she did in fact use a rose gold cell phone prior to May 2021. The Court thus later clarified that issues regarding the existence of ESI backup would also be a subject of the evidentiary hearing.

 An evidentiary hearing took place over the course of four days starting October 15, 2021 (Mins., ECF Nos. 439-442), during which time the Plaintiffs presented witness testimony from Corrado Modica, Christina Sablan, Juan Lizama, Jonathan Langston, Mike Yang, and Fely Forbes, and Defendants presented testimony from Manni Guan, Chuanfu Huang, and Howyo Chi. The Court then held a status conference on November 5, 2021 and issued its oral ruling finding Cui not in contempt for failing to tender the devices she used to create or store ESI data during the period of preservation order. (Min., ECF No. 447.) Given that the Court had not yet found Cui in contempt for failing to tender her cell phone(s) subject to the preservation order, the burden fell on Plaintiffs to prove by “clear and convincing evidence that the contemnors violated a specific and definite order of the court.” F.T.C., 179 F.3d at 1239. In other words, Plaintiffs had to prove by “clear and convincing evidence” that Ms. Cui had a rose gold iPhone pre-dating her May 2021 purchase of such colored phone. While Ms. Cui asserted her fifth amendment privilege against testifying, such that the Court may draw adverse inferences, Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000), the Court still found that Plaintiffs failed to satisfy their burden. Notably, there were competing testimonies from witnesses over whether she had a rose gold phone during the subject period, and Plaintiffs never provided photo evidence of Ms. Cui having such a phone during the relevant time period. Moreover, while one witness testified to seeing Cui at various IPI events in 2019 and 2020 holding a pink-gold color phone, none of the photo evidence presented of the events depicted Cui present. While the Court was satisfied by a preponderance of the evidence over the existence of a rose gold phone during this period, the Court was not convinced by the requisite higher standard of clear and convincing. The Court thus made clear that it was not awarding Plaintiffs any attorneys’ fees and costs related to the issue of this rose gold cell phone.

Nevertheless, the Court at the status conference did find Cui in contempt for failing to provide the proper passwords to be sent to TransPerfect for access to her iCloud backup account so that it could make a forensic image of the available ESI data. Evidence by declarations and the testimonies of Langston and Forbes clearly established that there existed an iCloud backup, and Cui did not contest this portion. The Court thus granted Plaintiffs’ attorneys’ fees and cost for having to litigate this portion.

Plaintiffs submitted their third petition for attorneys’ fees and costs against Cui on November 30, 2021, seeking a total of $33,270 in fees for 79.59 hours expended by attorneys Halegua and Berline, and $1,760.70 in costs. (See Third Pet., ECF No. 460.) Plaintiffs also seek an additional amount for 2.05 hours Halegua expended in the reply brief. (“Third Reply,” ECF No. 470.) Cui filed an opposition to the third petition. (“Third Opp’n,” ECF No. 467.)

1) Reasonable Hours

In this third petition for attorneys’ fees, Plaintiffs divide the petition into three periods: (1) work performed from the August 25 Contempt Order until the October 6 hearing; (2) time spent after October 6 preparing for and conducting the evidentiary hearing, and then attending the November 5 status conference; and (3) time spent preparing the instant fee petition. (Third Pet. at 5.) Plaintiffs excluded time spent solely on the cell phone issue in the first and second periods, such as time spent related to Corrida Modica, any work related to Cui’s passport and I-94 work, and for any preparation work of Mike Yang, Christina Sablan, and Glenn Bell’s (who did not testify) testimony. (Id. at 5-6.) For the second period, Plaintiffs allege that it is “not possible to precisely decipher the proportion spent on the phone issue versus the ESI backups, iCloud account, passwords, and related issues,” as “(five of the nine) testified about the issue of the ESI Data backups and Ms. Cui’s iTunes and iCloud accounts: Jonathan Langton, Fely Forbes, John Lizama, Manni Guan, and Howyo Chi.” (Id. at 6-7). Plaintiffs thus applied a 40 percent reduction to those remaining hours for the second period. (Id. at 6.) Plaintiffs thus seek fees for 64.62 hours expended by Halegua, including for time spent in the reply brief, plus 16.97 hours expended by Berline. (Third. Pet. at 8; Third Reply.) In support of their hours, Plaintiffs included the declarations of attorneys Halegua and Berline. (See Halegua Third Decl., ECF No. 460-1; Berline Third Decl., ECF No. 460-2.) Plaintiffs also included contemporaneous time records for each individual. (See Halegua Third Timesheet, App’x A to Halegua Third Decl. ¶ 8, ECF No. 460-1; Berline Third Timesheet, App’x A to Berline Third Decl. ¶ 6, ECF No. 460-2.) Cui broadly objects to Plaintiffs’ third petition for attorneys’ fees, arguing that the sole or main issue of focus during the evidentiary hearings was on the matter regarding the existence of a gold or rose gold cell phone during the period of the preservation order with only brief discussions on the matter of the ESI backup, and that the mere 40 percent reduction is misleading and not reflective of the amount of time actually spent on issues outside of the phone issue. (Third Opp’n at 3-4.) She also highlights that Plaintiffs bear the burden of establishing the reasonableness to the fees. In reply, Plaintiffs point to Cui’s failure to acknowledge their reasoning and identify specified hours. (Third Reply at 3.)

Having reviewed the timesheets, the Court does agree with Cui that the predominate issue of the evidentiary hearing was the rose gold cell phone, such that a 40 percent reduction does not accurately reflect hours spent on issues outside of the phone issue. While five witnesses testified about the issue of the ESI Data backups, most of the testimonies were very brief and minimal, with only Langston’s and Forbes’ testimonies focused on the issue regarding Cui’s iCloud backup—which was what the Court found Cui in contempt for failing to provide access to. The Court therefore finds that awarding Plaintiffs fully for hours expended on the testimonies of Langston and Forbes and applying a 75 percent reduction for the rest during the second period more appropriate. Thus, the Court will award Halegua the 0.37 hours and 0.40 hours expended on October 18, 2021 teleconferencing and prepping with Langston for the evidentiary hearing, as well as 4.50 hours expended at the evidentiary hearing on October 18, 2021 EST (October 19, 2021 ChST) given that Forbes and Langston testified that day. As to the remaining 42.99 hours expended during this second period, the Court will apply a  75 percent reduction and award 10.75 hours. Thus the Court will award Halegua 16.02 hours for this second period. As to the first period, the Court will exclude the 0.10 hours expended on September 20, 2021 and the 0.27 hours on September 21, 2021 drafting Lizama’s declaration, and the 0.25 hours expended on September 22, 2022 teleconferencing with Berline regarding Lizama’s affidavit, as a review of that declaration shows that the declaration only pertained to the rose-gold/pink cell phone (ECF No. 429-1). The Court will therefore award 24.49 hours for Halegua for the first period. Given that the time spent establishing the right to and amount of the fee should be included in the lodestar calculation, Camacho, 523 F.3d at 981, the Court will grant the 8.70 hours expended in the third period as well as the 2.05 hours spent on the reply. Accordingly, the Court finds that a total of 51.26 hours expended by Halegua during this third petition period is reasonable.

Applying the same to Berline, the Court will award Berline 4.50 hours for time expended at the evidentiary hearing on October 19, 2021, but apply a 75 percent reduction for the period from October 13, 2021 through November 5, 2021. The Court therefore finds 11.57 hours expended by Berline reasonable.

2) Lodestar Amount

In sum, the Court will award Plaintiffs’ the following amount in attorneys’ fees for their third petition:

Third Petition

Rate Hour Total

Aaron Halegua $400 51.26 $20,504.00

Bruce Berline $300 11.57 $3,471.00

Total $23,975.00

3) Costs

Plaintiffs initially sought $2,873.20 in costs, which included $1,112.50 in invoice to TransPerfect. (Third Pet. at 8.) However, Cui has since paid Plaintiffs for the TransPerfect fees; Plaintiffs thus only seek $1,760.70 in costs for the third petition. (Notice, ECF No. 499.) Plaintiffs seek costs for service of subpoenas and witness fees for Lizama and Forbes; translation costs of Mike Yang during the evidentiary hearing; photocopies and scanning; and PACER charges. The costs are supported by the declaration of Berline (see Berline Third Decl. ¶ 10), as well as a list of costs (App’x B to Berline Third Decl. ¶ 10, ECF No. 460-2) and copies of invoices (App’x C to Berline Third Decl. ¶ 10, ECF No. 460-2). Plaintiffs do not seek costs related to Corrida Modica. (Third Pet. at 8.)

Because the Court did not find Cui in contempt relating to the rose gold cell phone, the Court cannot award costs associated with time spent on that issue. Plaintiffs’ cost list and invoices fail to segregate what portions of photocopies and scanning are attributed to costs that can properly be awarded for—the Court will therefore exclude those costs. Moreover, because Lizama predominantly testified to the rose gold cell phone issue, the Court will exclude the subpoena and witness fees spent on him. The Court will also exclude the translation fees for Mike Wang spent for the first two days of the evidentiary hearing, as the issues on those predominantly touched on the rose gold cell phone. The Court will therefore only award Plaintiffs in cost reimbursements for the witness and subpoena fees of Fely Forbes, as well as the $292.50 in translation costs for Mike Yang’s services on October 19, 2021 on the day both Forbes and Langston testified. The Court will only therefore award Plaintiffs $562.50 in costs. In sum, the Court will award Plaintiffs $24,537.50 in attorneys’ fees and costs for this third petition.

C. Fourth Petition

At the status hearing on December 1, 2021, the Court entered a finding that Ms. Cui Lijie purged her contempt to the limited extent of her issuing the subpoenas and giving access to her Apple iCloud account. (Min, ECF No. 463.) However, the Court ordered Ms. Cui to file a sworn statement identifying and explaining existence of any and all ESI backup accounts, whether it be iTunes or iCloud, including QQ account, no later than December 8, 2021. (Id.) Ms. Cui was further ordered to address in the sworn statement the March 21, 2021 initialization of her phone and address why Felly Forbes from IT&E saw her use a QQ email address. (Id.) However, at a status conference held on December 22, 2021, the Court again found Cui in contempt for failing to comply with the Court’s orders, given that evidence at the time suggested that Ms. Cui had an iTunes backup and a QQ account Apple ID. The Court thus awarded attorneys’ fees to Plaintiffs. (ECF No. 471). By the December 29, 2021 hearing, the Court found that Cui still had not purged her contempt.

 Plaintiffs subsequently filed their fourth petition for attorneys’ fees, seeking $11,871 in fees for 21.98 hours expended by Halegua and 6.60 hours expended by Berline. (Fourth Pet. at 3, ECF No. 489.) The petitions are supported by the declarations of attorneys Halegua and Berline (see Halegua Fourth Decl., ECF No. 489-1; Berline Fourth Decl., ECF No. 489-2) as well as their contemporaneous time records (see Halegua Fourth Timesheet, App’x A to Halegua Fourth Decl. ¶ 8, ECF No. 489-1; Berline Fourth Timesheet, App’x A to Berline Fourth Decl. ¶ 6, ECF No. 489-2). Plaintiffs do not seek costs for this fourth petition. Cui did not file any opposition to this petition. Given no opposition and having reviewed the timesheets, the Court finds that the hours expended by both attorneys on preparing and filing the status reports, reviewing Cui’s filings, drafting responses, preparing for and attending the hearings, and preparing the instant fee petition reasonable. The Court will therefore award Plaintiffs for all hours requested in this fee petition, but award Halegua at the rate of $400 per hour.

In sum, the Court will award Plaintiffs’ the following amount in attorneys’ fees for their fourth petition:

Fourth Petition

Rate Hour Total

Aaron Halegua $400 21.98 $8,792.00

Bruce Berline $300 6.6 $1,980.00

Total $10,772.00

D. Fifth Petition

 At the status conference held on December 29, 2021 over pending ESI issues, the Court increased the daily per diem sanction to $1,000 starting December 30, 2021 until Cui purged her contempt, and set the matter for a final evidentiary hearing on the outstanding ESI issue. (Min., ECF No. 478.) After the hearing date was continued multiple times, the evidentiary hearing was finally held over two days, starting March 8, 2022. (Min., ECF No. 509.) On March 10, 2022, the Court found that Cui finally purged her contempt. (Min., ECF No. 510.) The Court nonetheless awarded Plaintiffs attorneys’ fees and costs as civil contempt sanctions for the time they had to expend on the ESI backup issue up until Cui purged her contempt.

Plaintiffs filed their fifth petition for attorneys’ fees and costs on March 21, 2022, seeking $33,765.00 in attorneys’ fees for 79.38 hours of work expended by three attorneys—Halegua, Berline, and Wang—as well as $3,720.63 in costs. (Fifth Pet., ECF No. 514.) Plaintiffs also seek fees for 4.98 hours expended for the reply brief. (“Fifth Reply” at 1, ECF No. 517-1). In opposition, Cui argues that given she was never a named party to the above-entitled civil matter and was brought into this matter on “erroneous assumption[s]” about the existence of a rose gold cell phone, ESI backup data, an Apple ID using a qq.com email address, and the phone being initialized and restored from a backup around March 21, 2021. (“Fifth Opp’n” at 2, ECF No. 515.) Cui contends that because she has purged her contempt, the Court should reduce the lodestar amount substantially regarding this instant fifth petition, as well as all of the other prior petitions. (Id. at 4.)

The Court, however, rejects Cui’s request for a downward adjustment, given that Cui has failed to identify any Kerr factor warranting such a reduction. See Kerr, 526 F.2d at 70. Moreover, once the Court finds a party in contempt, which the Court did here in many instances, the “burden then shifts to the contemnors to demonstrate why they were unable to comply.” F.T.C., 179 F.3d at 1239. Cui could have and should have engaged in her own expert(s) much sooner to contest or explain why she could not comply with the Court’s orders, but failed to meet this burden until the March 10, 2022 hearing—resulting in efforts expended for nearly a year to finally obtain a clear explanation for why she could not comply with the Court’s orders. While civil contempt sanctions focus on future compliance and not punishment for past conduct, Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1481 (9th Cir. 1992), courts may nonetheless award compensatory damages as part of a civil contempt proceeding for remedial purposes, Koninklijke Philips Elecs. N.V., 539 F.3d at 1042. Plaintiffs expended numerous hours and resources over a year in trying to obtain Cui’s compliance or explanation for inability to comply with the Court’s orders. Plaintiffs are thus entitled to attorneys’ fees and costs for remedial purposes. The Court therefore finds that the hours expended by Plaintiffs’ attorneys during this period on preparing for the evidentiary hearing, including preparing subpoenas, reviewing filings, and conducting investigation, as reasonable; however, the Court will exclude a few hours, as further discussed below.

1) Reasonable Hours

 Plaintiffs seek fees for 59.82 hours expended by Halegua, 18.81 hours expended by Berline, and 0.75 hours expended by Wang. (Fifth Pet. at 6.) The fee petitions are supported by the declarations of attorneys Halegua, Berline, and Wang (see Halegua Fifth Decl., ECF No. 514-1; Berline Fifth Decl., ECF No. 514-2; Wang Decl. ¶ 3, ECF No. 514-3) as well as contemporaneous time records (see Halegua Fifth Timesheet, App’x A to Halegua Fifth Decl. ¶ 6, ECF No. 514-1; Berline Fifth Timesheet, App’x A to Berline Fifth Decl. ¶ 6, ECF No. 514-2). Plaintiffs also seek additional fees for 3.78 hours expended by Halegua and 1.20 hours expended by Wang on the reply brief. (See Halegua Fifth Supp. Decl. ¶¶ 3-4, ECF No. 517-1; Halegua Fifth Supp. Timesheet, App’x A to Halegua Fifth Supp. Decl. ¶ 3.)

As part of these fee petition, Plaintiffs seek fees for the time spent preparing a motion to adjourn the evidentiary hearing (ECF No. 496) and for the February 3, 2022 hearing on that topic (ECF No. 500), noting that time spent on that motion and hearing were necessary given Cui’s refusal to agree to an extension of time despite Berline being off-island for medical reasons. (Fifth Pet. at 6.) However, the Court disagrees with the inclusion of these hoursin the fee petition. Notably, thisspecific request for an evidentiary hearing came at the request of Plaintiffs for two reasons: Berline being offisland for medical reasons, and Plaintiffs needing additional time to obtain responses to their subpoenas and to depose Howyo Chi and Lijie Cui. (See ECF No. 496.) Cui objected to any extension largely for the purposes of conducting further depositions, not solely because of Berline’s need to be off-island for medical reasons. (See ECF No. 497.) At the hearing held on February 3, 2022, Cui conceded that she was not objecting to an extension based on Berline needing to be off-island for medical reasons, but objected to the portion of seeking an extension for purposes of conducting further depositions. (Min., ECF No. 500.) The Court agreed with Cui on this, and therefore denied the motion for an extension in part as to the depositions portion, but granted it in part to allow Berline to return on island. The Court therefore finds it unjust to award Plaintiffs for time expended on their own request for an extension, especially when the Court agreed with Cui’s substantive objection and denied in part the motion. Accordingly, the Court will discount from Halegua’s request 7.12 hours as follows:

1/31/22 0.27 Cui - OSC - TC with JP re request for extension (meet and confer), evidentiary hearing

1/31/22 3.20 Cui - OSC - draft motion for extension of time; TC with BB; revisions and filing

2/2/22 0.25 Cui - OSC - review Cui's opposition to extension of time request

2/2/22 0.31 Cui - OSC - prepare for hearing - call with J Langton

2/2/22 1.08 Cui - OSC - prepare for hearing - review Chi decls, Wolfe decl, Cui decl, ESI expert decl, other docs

2/2/22 0.38 Cui - OSC - prep for hearing - TC with BB

2/2/22 0.37 Cui - OSC - prepare for hearing - review Chi decls, Wolfe decl, Cui decl, ESI expert decl, other docs

2/2/22 0.83 Cui - OSC - hearing on extension of time (Feb 3 (ChST))

2/2/22 0.43 Cui - OSC - discussion with BB on next steps

The Court therefore awards 56.48 hours for Halegua. For the same reasons, the Court will exclude from Berline’s requested hours the 0.38 hours expended on February 2, 2022 teleconferencing with Aaron, the 0.8 hours spent on the hearing on that date, and the following 0.43 hours teleconferencing with Aaron on next steps. The Court therefore awards 17.20 hours for Berline. As for Times Wang, the Court finds the 1.95 hours he expended on legal research for the evidentiary hearing and reply brief for attorneys’ fees reasonable and will therefore award him for the total hours requested.

2) Lodestar Amount

In sum, the Court will award Plaintiffs’ the following amount in attorneys’ fees for their fifth petition:

Fifth Petition

Rate Hour Total

Aaron Halegua $400 56.48 $22,592.00

Bruce Berline $300 17.2 $5,160.00

Times Wang $350 1.95 $682.50

Total $28,434.50

3) Costs

Plaintiffs also seek $3,720.63 in costs for this fifth fee petition, which includes $1,546.03 in an invoice amount from TransPerfect for Langston to review Ms. Cui’s expert’s declaration, prepare for testifying, and review the stipulation; subpoena and witness fees; interpreter fees; and photocopying costs. (Fifth Pet. at 6-7.) The costs are supported by the declaration of Berline (see Berline Fifth Decl. ¶ 8), as well as a list of costs (App’x B to Berline Fifth Decl. ¶ 8, ECF No. 514-2) and copies of invoices (App’x C to Berline Fifth Decl. ¶ 8, ECF No. 514-2). Having reviewed Plaintiffs’ request, the Court finds that these costs are reasonable and necessary and stem directly as a result of Cui’s noncompliance with the Court’s preservation orders. Accordingly, the Court awards Plaintiffs $3,720.63 in costs for this fifth petition, for a total award of $32,155.13 in attorneys’ fees and costs for Plaintiffs’ fifth petition.

E. Total Amount

In sum, Plaintiffs are awarded the following total for their second, third, fourth, and fifth petitions for attorneys’ fees and costs against Cui:

Petition Totals

Second Third Fourth Fifth TOTAL

Aaron Halegua $87,132.00 $20,504.00 $8,792.00 $22,592.00 $139,020.00

Bruce Berline $14,061.00 $3,471.00 $1,980.00 $5,160.00 $24,672.00

Times Wang $2,373.00 N/A N/A $682.50 $3,055.50

Qianfeng Lin $4,615.00 N/A N/A N/A $4,615.00

Nanami Hirata $3,863.60 N/A N/A N/A $3,863.60

Costs $3,128.30 $562.50 N/A $3,720.63 $7,411.43

TOTAL $115,172.90 $24,537.50 $10,772.00 $32,155.13 $182,637.53

IV. CONCLUSION

It is unfortunate that the process to obtain a clear explanation from Cui about her ESI data from her various devices and accounts spanned nearly a year and exhausted countless resources from Plaintiffs, Cui, and the Court. For the reasons set forth above, the Court GRANTS Plaintiffs’ second, third, fourth, and fifth petition for attorneys’ fees and costs against third-party witness Lijie Cui, but in the lesser total amount of $182,637.53. Ms. Cui is ordered to pay this amount to Plaintiffs within 30 days[1] of the issuance of this order, which is no later than June 21, 2022 because the 30th day falls on June 18, 2022, a Saturday, and June 20, 2022, is a federal holiday.

IT IS SO ORDERED this 19th day of May, 2022.

RAMONA V. MANGLONA, Chief Judge