*1 Presently before the Court is Defendant National Strength and Conditioning Association's (the “NSCA”) Motion to Appoint Special Master (“Def.'s Mot.,” ECF Nos. 257, 267). Also before the Court are Plaintiff CrossFit, Inc.'s (“CrossFit”) Notice of Filing of Interim Status Report Prepared by Court-Appointed Neutral Forensic Evaluator (the “Report,” ECF Nos. 261, 268) and Notice of Filing of Supplemental Status Report Prepared by Court-Appointed Neutral Forensic Evaluator (“Supp. Report,” ECF Nos. 288, 297), the NSCA's Response to the Report (“Resp.,” ECF Nos. 279, 283, 295), CrossFit's Reply to the NSCA's Response (“Pl.'s Reply,” ECF Nos. 294, 299), and CrossFit's Opposition to (“Pl.'s Opp.,” ECF Nos. 272, 281) and the NSCA's Reply in support of (“Def.'s Reply,” ECF Nos. 291, 298) Defendant's Motion.[1]

On October 9, 2018, the Court granted CrossFit's Ex Parte Motion for Order Scheduling Live Hearing Regarding Stroz Friedberg's (“Stroz”) Interim Report, Delays in Completion of Forensic Analysis and Deadlines for Full Compliance with Sanctions Order (“Pl.'s Mot.,” ECF Nos. 264, 269). See ECF No. 300. As part of that Order, the Court ordered the parties and a representative from Stroz to attend the October 18, 2018 hearing on Defendant's Motion and to be prepared to address the status of the forensic evaluation and a schedule for the NSCA to comply with the Court's May 26, 2017 Sanctions Order. See id. at 2.

The Court held a hearing on October 18, 2018, at which counsel for the NSCA and CrossFit and a representative and the General Counsel from Stroz were in attendance. See ECF No. 301. After considering the parties' and Stroz's arguments and the law, the Court DENIES Defendant's Motion and sets a Scheduling Order as detailed below.

I. Relevant Allegations and Procedural Background

Plaintiff CrossFit is a “relatively new player in the fitness space,” which formulated a fitness regimen based on “constantly varied functional movements performed at a relatively high intensity, with an emphasis on aerobic exercises, gymnastic movements, and Olympic weight lifting.” Second Amended Compl. (“SAC”), ECF No. 187 ¶ 3. The NSCA, by contrast, is a well-established competitor of CrossFit's in the fitness industry, which certifies personal trainers and strength and conditioning professionals and publishes scholarly journals advocating traditional fitness. Id. ¶ 2.

Generally speaking, Plaintiff's claims arise from the publication of an article in November 2013 in the Journal of Strength and Conditioning Research (“JSCR”), the NSCA's “flagship journal,” authored by Drs. Steven T. Devor, Michael M. Smith, Allan J. Sommer, and Brooke E. Starkoff. See id. ¶¶ 1, 5, 106–08. The article in question, “Cross-fit based high intensity power training improves maximal aerobic fitness and body composition,” purported to track fifty-four individuals during ten weeks of CrossFit training, id. ¶¶ 5, 111, and represented that eleven subjects “dropped out of the training program,” with nine citing “overuse or injury for failing to complete the program and finish follow up testing.” Id. ¶ 117. Based on these statistics, the article found a 16% overuse or injury rate among CrossFit participants, which the article claimed “may call into question the risk-benefit ratio for such extreme training.” Id. ¶ 116. CrossFit claims that these statistics were fabricated. See, e.g., id. ¶¶ 120–29.

*2 In September 2015, the NSCA published an Erratum, purportedly clarifying that “[a]fter the article was published, 10 of the 11 participants who did not complete the study have provided their reasons for not finishing, with only 2 mentioning injury or health conditions that prevented them from completing follow-up testing.” Id. ¶ 142. The NSCA also represented that “[t]his change does not affect the overall conclusion of the article.” Id. ¶ 141. CrossFit claims that the Erratum was misleading, however, because the two participants who mentioned an injury or health condition explicitly clarified that their injury or health condition stemmed from activities outside of CrossFit training. Id. ¶ 144.

CrossFit filed its original complaint against the NSCA on May 12, 2014, asserting claims for False Advertising under 15 U.S.C. § 1125(a), False Advertising under California Business and Professions Code § 17500, Unfair Competition under California Business and Professions Code § 17200, and Declaratory Relief. See ECF No. 1. Plaintiff's operative Second Amended Complaint, filed June 26, 2017, asserts a claim for Trade Libel in place of its former claim for Declaratory Relief. See ECF No. 191.

On May 2, 2016, the NSCA filed a lawsuit in the Superior Court of the State of California, County of San Diego (the “State Court Action”), against CrossFit and others, alleging trade libel, defamation, and unfair business practices. See NSCA v. Glassman et al., No. 37-2016-00014339-CU-DF-CTL (Cal. Super. filed May 2, 2016); see also Declaration of Justin Nahama in Opposition to Def.'s Mot. (“Nahama Decl.”) Ex. EE, ECF No. 272-2 at 244–52.

II. Prior Discovery Efforts and Representations

After the lawsuit was filed, the parties initiated discovery, proposing a fact-discovery cutoff of February 23, 2015. See ECF No. 11. The parties soon found themselves in several discovery disputes. See, e.g., ECF Nos. 20, 25, 28, 30, 32, 51. On July 15, 2015, Magistrate Judge Karen S. Crawford ordered the NSCA to provide CrossFit with declarations indicating “[t]he process or processes used by defendant to locate documents and information responsive to plaintiff's documents requests, including but not limited to the search terms and/or date ranges used to locate documents” and “stating under penalty of perjury that all documents responsive to plaintiff's document requests have been produced ‘to the best of the person's knowledge, information and belief formed after a reasonable inquiry.’ ” ECF No. 59 at 9–10.

In response to this Order, the NSCA provided CrossFit with the Declaration of Keith Cinea. See Nahama Decl. Ex. C, ECF No. 272-2 at 21–28. Mr. Cinea attested that he “personally approached each department director and had them search their emails for communications with Devor, Smith, Berger, and Greene,” with “no time parameters set for the search.” Id. ¶ 2(a). He also asked each Director to “search[ ] for any emails containing the word ‘crossfit.’ ” Id. Mr. Cinea also confirmed that neither Devor nor Smith was a member of the NSCA, meaning that “there would be no other communications to them outside of their article submission.” Id. ¶ 3(a). An Executive Assistant was “[a]sked to search for communications with Smith, Devor, Berger, and Greene,” and “sent that same request to the NSCA Board of Directors.” Id. ¶ 3(b). She also “was asked to search for any complaints received about NSCA articles,” id., as was the NSCA's Publications Manager, id. ¶ 3(c), and a Receptionist. Id. ¶ 3(d).

Mr. Cinea claimed that he forwarded the requests for production to Dr. William Kraemer, the Editor-in-Chief of the JSCR, for reports and articles from Editorial Manager that fell within the scope of the requests for the Devor article, the Hak article, and request numbers 25 and 26. Id. ¶ 4. Mr. Cinea also claimed that he personally searched the NSCA's servers “using the key terms ‘crossfit’ looking for documents meeting the requirements for request 2 and 20, the term ‘Ohio Fit Club’ for request number 3, and the terms ‘consortium’ and ‘Champ’ for request number 22.” Id. ¶ 5. He also “worked with the Marketing / PR Manager for any communication regarding crossfit to media outlets.” Id. ¶ 6. In short, “[e]ach Director searched their email, the Board of Directors searched their email. The company server (J drive) was searched.” Id. ¶ 7(a).

III. The Court's May 26, 2017 Sanctions Order and October 19, 2017 Order Denying Reconsideration

*3 On February 2, 2017, CrossFit filed a motion for terminating or, alternatively, issue, evidentiary, and monetary sanctions against the NSCA. See generally ECF Nos. 150, 162. The motion was predicated on CrossFit's receipt of discovery in the State Court Action that either directly responded to discovery propounded in this action or contradicted assertions that the NSCA's deponents had made in this action. See ECF No. 176 at 3. In opposing the motion, the NSCA submitted a declaration from Mr. Cinea attesting that he “firmly believe[d] that [his August 2015 declaration] accurately reflect[ed] the methods and processes [he] undertook.” See ECF No. 156-1 ¶ 3.

Although the Court concluded that “it [would be] well within its discretion to award terminating sanctions,” the Court “decline[d] to do so at th[at] time.” Id. at 10. Instead, the Court issued a number of issue, evidentiary, and monetary sanctions, see id. at 11–14, and ordered CrossFit to “commission a neutral forensic analysis of the NSCA's servers,” requiring the NSCA to “pay all costs relating to such forensic analysis.” Id. at 10. The Court also ordered the NSCA to file “declarations from all relevant NSCA personnel either (a) assuring or reaffirming that no documents relevant to this litigation ha[d] been destroyed or (b) admitting to any destruction.” Id. The Court also granted CrossFit leave to renew its motion for terminating sanctions “[i]f at the conclusion of the neutral forensic evaluation it appears that documents have been destroyed, or that the discovery misconduct is substantially greater than the scope of which Plaintiff is currently aware.”

The NSCA requested that the Court reconsider its order on June 23, 2017. See ECF No. 186. The Court declined, finding that there was “no new evidence warranting reconsideration,” see ECF No. 212 at 4–5, “no intervening change in controlling law warranting reconsideration,” see id. at 5–6, and that Defendant “presented no clear error or manifest injustice warranting reconsideration. Id. at 6–12. Specifically, the Court concluded that there was “no clear error in its reliance on the volume of unproduced documents in determining sanctions,” id. at 7, that “Defendant ha[d] not proven clear error in the Court's determination of bad faith,” id. at 10, and that “Defendant ha[d] not proven any clear error or manifest injustice in the Court's issuance of sanctions.” Id. at 12.

IV. Retention of Stroz Friedberg

Pursuant to the Court's May 26, 2017 Order, CrossFit retained Stroz on June 23, 2017. See generally Declaration of Genevieve M. Ruch in Support of Def.'s Mot. (“Ruch Decl.”) Ex. 4, ECF No. 267-2; Nahama Decl. Ex. D, ECF No. 281-3 at 30–34. An engagement agreement was signed by James M. Aquilina, Senior Executive Managing Director of Stroz; Michael Massik, Executive Director of the NSCA; the NSCA's outside counsel, Kenneth S. Kawabata of Manning & Kass, Ellrod, Ramirez, Trester LLP, on behalf of the NSCA; Marshall Brenner, General Counsel of CrossFit; and CrossFit's outside counsel, Justin Nahama of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. Id. at 5.

The engagement agreement laid out Stroz's hourly rates, rates for machine time and other platforms, and the requirement of a $10,000 retainer. Id. at 2–3. The engagement agreement also provided that Stroz would send invoices to the NSCA, which “are due within 30 days of the invoice date” and that the “NSCA or its counsel shall notify Stroz Friedberg in writing of any disputed charges within these 30 days; otherwise, Stroz Friedberg's invoices shall be deemed payable in full.” Id. at 3. Finally, the engagement agreement provided that “Stroz Friedberg reserves the right to terminate its services at any time if NSCA fails to pay Stroz Friedberg's invoices on time or fails to pay a requested refresher of a retainer.” Id. Stroz emphasized that “[a]ny provided estimates of fees and expenses are only estimates and are not binding.” Id.

*4 As was standard for Stroz, the engagement letter included no “budgets, projects, or timelines.” Nahama Decl. Ex. E, ECF No. 281-3 at 44. Stroz also informed the parties that it would “only disclose findings pursuant to an agreed upon protocol that gives the NSCA the ability to object to initial production of, and preliminarily withhold, privileged or other protected information.” Id.

V. The Forensic Protocol

Following the retention of Stroz, the parties and Stroz began formulating a proposed protocol for the forensic analysis. See generally Nahama Decl. Ex. E at 36–43. Mr. Aquilina circulated a draft protocol to the parties on August 15, 2017, requesting that the NSCA provide “at [its] earliest convenience so that [Stroz] may circulate [its] proposed protocol and move forward with [its] work” “the criteria (including list(s) of keywords, date ranges, etc.) used to identify responsive material in prior searches and productions for both the federal (3:14-cv-01191-JLS-KSC) and state (37-2016-00014339-CU-DF-CTL) court proceedings.” Id. at 43.

Although Mr. Aquilina followed up with the NSCA's counsel by phone, he received no response until Friday, September 1, 2017.[2] Id. at 42. At that time, Mr. Kawabata promised to provide “the search criteria that was utilized ... by close of business on Tuesday.” Id. After some confusion, see id. at 41, the NSCA's counsel provided the requested list to Stroz on Thursday, September 7, 2017. See id. at 39.

On September 12, 2017, Mr. Aquilina circulated a proposed draft forensic protocol for the parties' review. See id. at 38. Following several email exchanges and discussions, see id. at 36–38; Nahama Decl. Ex. F, ECF No. 281-3 at 55–56, Mr. Aquilina circulated a final forensic protocol outline on September 27, 2017. See Nahama Decl. Ex. G, ECF No. 281-3 at 58.

The protocol broke Stroz's work into four discrete phases. See generally Nahama Decl. Ex. G at 59–61; Ruch Decl. Ex. 5, ECF No. 267-3. The first phase, “Identification of Data,” was “to identify the custodians, computer systems and repositories containing potentially relevant information, including systems and repositories used by [NSCA] personnel.” Nahama Decl. Ex. G at 59–60; Ruch Decl. Ex. 5 at 21–22. Stroz estimated that this initial phase would take approximately one or two weeks. Nahama Decl. Ex. E at 36.

During the second phase, “Data Preservation and Collection,” Stroz intended to “create forensically sound copies of the devices, systems, and data Stroz Friedberg determine[d] are in scope based on the work [it] perform[ed] in Phase 1.” Nahama Decl. Ex. G at 60–61; Ruch Decl. Ex. 5 at 22–23. Stroz estimated that the second phase would take approximately three to four weeks. Nahama Decl. Ex. E at 36.

The third phase, “Processing and Analysis,” involved “process[ing] the collected data to facilitate keyword searching and other analysis to identify potentially responsive data, including other instances of the document referenced in Plaintiff's Sanction Motion Exhibit A.” Nahama Decl. Ex. G at 61; Ruch Decl. Ex. 5 at 23. Stroz estimated that the third phase would take approximately four to six weeks, although it also believed that there would be some overlap with the second phase of the investigation. Nahama Decl. Ex. E at 36.

*5 Finally, Stroz anticipated “disclos[ing] its findings in an appropriate format to be determined in consultation with the Court.” Nahama Decl. Ex. G at 61; Ruch Decl. Ex. 5 at 23. Stroz estimated that this would take between two and three weeks. Nahama Decl. Ex. E at 36.

There were two appendices to the protocol. Nahama Decl. Ex. G at 62–65; Ruch Decl. Ex. 5 at 24–27. The first, Appendix A, “established preliminary sets of custodians and data repositories,” which were created “[b]ased upon a review of documents, including exhibits, sworn declarations, and deposition transcripts, relevant to the Federal and State court cases.” Nahama Decl. Ex. G at 62; Ruch Decl. Ex. 5 at 24. Appendix A lists 39 custodians, Nahama Decl. Ex. G at 62–63; Ruch Decl. Ex. 5 at 24–25, and eight data repositories. Nahama Decl. Ex. G at 64; Ruch Decl. Ex. 5 at 26. Stroz indicated that “[t]hese lists ... are subject to modification (both additions and removals) as Stroz Friedberg learns additional information about the litigation through in-person and telephonic interviews, review of systems and data, and additional document review.” Nahama Decl. Ex. G at 62; Ruch Decl. Ex. 5 at 24.

Appendix B contained the “Keywords Used by NSCA for Federal Court Case and State Court Case.” Nahama Decl. Ex. G at 65; Ruch Decl. Ex. 5 at 28. Among the terms listed are such terms as “CrossFit,” “Devor,” “Devor Study,” and “crossfit.” Id. The protocol noted that “[t]he keywords used by the NSCA for both the Federal Court Case and the State Court Case were provided to Stroz Friedberg on September 8, 2017 by NSCA's counsel.” Nahama Decl. Ex. G at 61 n.1; Ruch Decl. Ex. 5 at 23 n.1.

VI. Execution of the Protocol

Despite Stroz's optimism that it could conduct and conclude its forensic evaluation within four months, see Nahama Decl. Ex. E at 36, it soon became clear that the process would take much longer. In January 2018, over three months after the final Protocol had been circulated, Stroz sent an update to the parties, indicating that it was still harvesting forensic images from on-site collections from the NSCA. See Nahama Decl. Ex. H, ECF No. 281-3 at 75. It also became clear that Stroz was having difficulty scheduling interviews with key NSCA custodians. Id.

At the end of January 2018, counsel for CrossFit “relayed concerns about ... additional NSCA custodians” not originally identified by the NSCA. See id. at 70–71. CrossFit identified eight specific custodians not previously identified by the NSCA, and requested that the NSCA “please send Stroz and Plaintiff a final list of former and present NSCA employees, Board Members, or Fellows who the NSCA contends are document/ESI custodians for materials that are within the NSCA's custody, possession or control.” Id. at 71 (emphasis in original). Counsel for CrossFit also asked that the NSCA “set[ ] out by individual case (federal or state) the specific terms the NSCA used in each [of the federal and state court] matter's pre-Sanctions document productions.” Id. (emphasis in original).

In mid-February 2018, over four months after the Protocol was adopted, counsel for the NSCA responded that the NSCA was “still investigating which search terms were applied in the federal versus state case and [was] not able at this time to provide a breakdown of the terms applied in each individual case” and “still conferring with [its] client” about the NSCA's custodians. Id. at 70.

*6 Understandably, CrossFit responded that it was “very concerned about the NSCA providing incomplete information to Stroz at the outset of the forensic investigation” and that “[t]his additional delay is not reasonable and strongly suggests that the NSCA has not cooperated with the forensic evaluation in good faith.” Id. at 69.

Several days later, the NSCA replied, “strongly disagree[ing] with CrossFit's assertion that the NSCA ha[d] provided incomplete or misleading information to Stroz.” Id. at 68. The NSCA also provided “a list of NSCA employees and board members for whom the NSCA has materials in its possession, custody, or control.” Id. at 67. Specifically, the NSCA provided two separate lists: one “list[ing] current and former NSCA employees and contractors, as well as NSCA board members, for whom the NSCA has material in its possession custody, or control”; and a second “contain[ing] the names of 55 additional individuals ... discovered in the NSCA's old PST files [who] appear to have had a NSCA email address.” Id. at 68.

Mr. Aquilina responded: “Just to be clear, the parties and their respective counsel had the opportunity to review and comment on a draft of the forensic protocol and its appendices, as well as ultimately approve the final version. While I appreciate that Noonan Lance is newer to the table, Stroz created the first draft of Appendix A subject to the parties' review and confirmation of its accuracy at the time.” Id. at 67.

Around the same time, the NSCA informed Stroz and counsel for CrossFit that the NSCA “ha[d] just discovered that there may be an issue with certain information that has been provided to Stroz Friedberg.” Nahama Decl. Ex. N, ECF No. 281-4 at 115. Specifically, although the NSCA had previously believed that it had a May 2014 backup of its Exchange email server, “it looks like the NSCA actually has an October 2011 backup of the Exchange email server instead.” Id. The NSCA also reported that it “found a November 2010 backup and February 2015 backup of the Exchange email server.” Id.

On April 6, 2018, nearly a year after the Court issued its sanctions Order and six months after the Protocol was adopted, the NSCA provided “a list showing what [it] underst[oo]d to be the federal and state court searches performed before the federal court sanctions order.” Nahama Decl. Ex. I, ECF No. 281-3 at 78. The list was eight pages long, consisting principally of “[g]eneral search[es].” See id. at 79–86.

On April 19, 2018, Stroz provided a status report to the parties, noting that, “[a]s of the date of this memorandum, Stroz does not have the actual search terms the NSCA used during the discovery phase of the Federal and State Court cases.” Nahama Decl. Ex. B, ECF No. 281-2 at 18. Rather, “[i]nstead of keywords that could be ingested directly or with minimal modification into an eDiscovery platform, Stroz received from counsel for the NSCA a list of conceptual search criteria and categories of ‘general searches.’ ” Id. Stroz also indicated that, “[d]ue to the quantity of persons identified by NSCA as ‘potential’ custodians, as well as inaccurate or incomplete NSCA asset inventory records, Stroz recommended a shift to a collection strategy centered on devices instead of custodians.” Id. at 19. Stroz reported that it “completed ... supplementary collections in a visit to NSCA headquarters on April 7–10, 2018, preserving nearly 200 additional media, including desktops, laptops, external storage, and server data.” Id. Stroz concluded that, “before access to the eDiscovery database can be granted to the parties involved, it is imperative that Stroz receive the actual prior Federal and State search terms from NSCA to accommodate the agreed upon workflow.” Id.

*7 On April 26, 2018, Mr. Aquilina informed the parties of Stroz's belief that the NSCA had “fail[ed] to provide [Stroz] with the information necessary to execute against the agreed upon protocol.” Nahama Decl. Ex. W, ECF No. 281-4 at 181. Mr. Aquilina added on April 27, 2018, that “it is impossible to complete the keyword searching, given that [Stroz] ha[s] yet to receive the original set of search terms from NSCA.” Id. at 179.

On April 30, 2018, the NSCA provided “a list of possible additional search terms used in the federal and state cases prior to the Sanctions Order.” Nahama Decl. Ex. J, ECF No. 281-3 at 88. The lists explicitly “[n]ote[d] that the NSCA cannot confirm that the below search terms were applied, but [the NSCA] is in possession of information which makes it reasonable to conclude that they were.” Id. at 89, 90.

On June 5, 2018, Stroz sent the parties a search term report, showing 1,339,517 document hits, 6,428,330 family hits, and 940,517 unique hits. See Nahama Decl. Ex. L, ECF No. 281-3 at 95–98.

VII. The July 25, 2018 Status Report

In July 2018, Stroz sent the parties a status report. See generally Nahama Decl. Ex. T, ECF No. 281-4 at 152–60. Stroz reported that it had harvested approximately 8 Terabytes of data from 285 total devices, servers, and repositories, for approximately 118 custodians. Id. at 155–56. After de-duplicating the data, there were approximately 13 million documents. Id. at 56. Stroz requested the parties to modify the search terms to decrease the number of false positive hits, then reran the search terms on June 29, 2018, yielding 1,243,696 documents, consisting of 852,475 direct hits plus family members. Id. Stroz also reported that it “had to make several necessary changes to [its prior] timeline due to a variety of factors beyond its control.” Id. Specifically, Stroz noted that “[a]n additional 228 custodians and repositories were identified”:

Id. at 157. Stroz also indicated that “[t]he natives from the Federal and State cases were turned over to Stroz Friedberg on March 26, 2018,” id.; “Stroz received the first pass at search terms from both parties as of May 4, 2018,” id.; and “Stroz received the final approved search terms from both parties as of June 15, 2018.” Id. at 158.

VIII. The Billing Dispute

On July 18, 2018, Stroz sent the NSCA invoices for work performed pursuant to the Protocol for April, May, and June 2018. See Ruch Decl. Ex. 3, ECF No. 257-7. On August 15, 2018, counsel for the NSCA emailed Stroz its “thoughts and concerns regarding Stroz's April, May, and June 2018 invoices.” Ruch Decl. Ex. 7, ECF No. 267-5 at 8. The NSCA indicated that it would “be making a payment of $931,251.11 on August 17th towards the balance of the April, May, and June 2018 bills,” which “reflects the amount which the NSCA believes is reasonable at this time under the circumstances, given what [the NSCA] understand[s] is the industry standard.” Id. The NSCA further noted that it would be depositing the remaining $450,000 in an escrow account “until the Special Master resolves the NSCA's concerns and determines the additional amounts, if any, to which Stroz is entitled.” Id.

*8 Specifically, the NSCA noted that Stroz “ha[d] historically provided its invoices on a quarterly basis,” and so the NSCA “received the April, May, and June invoices on July 18, 2018.” Id. Although “the NSCA had only been billed $938,672.72” prior to July 18, 2018, the invoices for April, May, and June 2018 totaled $1,381,251.11.” Id. Noting that the NSCA “would have raised concerns” concerning the $487,775.49 billed for April 2018 had it received the bill within 30 days of the end of the month, the NSCA “respectfully request[ed] that bills be sen[t] out on a monthly basis.” Id.

Second, the NSCA explained that although the price per GB for e-discovery services had been listed on prior invoices, the volume of data historically had been “much less.” Id. Upon contacting prior counsel, the NSCA reported that its prior counsel had “no recollection of receiving th[e] pricing sheet.” Id.

Third, the NSCA noted that “the volume of data (and e-discovery costs) greatly increased when the collection changed from a custodian-based collection to a device-based collection,” and the NSCA believed “that Stroz should have issued a Statement of Work regarding the e-discovery work to be performed” under the terms of the engagement agreement. Id. at 9.

Fourth, the NSCA requested that “an estimate be prepared for any future work Stroz will undertake.” Id.

Fifth, the NSCA reported that it had consulted with “various e-discovery vendors to determine the market rate for the e-discovery services being performed by Stroz.” Id. Despite recognizing that “these rates may not be an apples to apples comparison,” the NSCA claimed that, based on the responses it received, “Stroz's rates are far above market rates, especially in light of the large scale collection in this project” because “it is industry standard that e-discovery rates decrease as the amount of data to be processed and hosted increases.” Id. The NSCA noted that Stroz, for example, charges $75 per Gigabyte (“GB”) for initial data culling (or “IN processing”), compared to a “Market Rate” of $35/GB. Id. Similarly, Stroz charges $295/GB for promoting data to full review (or “OUT processing”) versus the $115/GB “Market Rate,” $25/GB for active hosting on Stroz's Relativity platform versus the $10/GB “Market Rate,” and $10/GB for IN hosting versus the $5/GB “Market Rate.”

Sixth, the NSCA thanked Stroz for offering to discount its e-discovery rates going forward, and requested that Stroz hold a call to discuss what is included in its various rates “so the NSCA can gain a full understanding regarding Stroz's past and future billing as soon as possible.” Id. at 10.

Seventh and finally, the NSCA noted that it had “had a very difficult time evaluating the professional services rendered due to vague billing descriptions.” Id. In particular, the NSCA pointed to billing entries in April for “image device” and on May 9, 2018, “work on the imaging form for client.” Id. The NSCA therefore requested that, “[g]oing forward, ... the professional time is described in a more detailed fashion so that the NSCA can evaluate the reasonableness and efficiency of the work performed.” Id.

Mr. Aquilina responded within a few hours with additional data for a call that day, including “[a] summary chart of proposed going forward discounts.” Id. at 7. Specifically, Stroz offered to reduce its Relativity Analytics Bundle charge from $175/GB to $75/GB, its IN processing fee from $75/GB to $50/GB, its OUT processing fee from $295/GB to $195/GB, its active hosting fee from $35/GB to $25/GB, and to maintain its inactive hosting fee at $10/GB. Id. On the call, Stroz agreed to retroactively apply the discount to the April through June 2018 invoices, for a total retroactive discount of $146,834.35. Id. at 6.

*9 The following day, the NSCA noted that it had “re-reviewed the engagement agreement and still believe[d] that there [was] no workable dispute resolution process contained in the agreement.” Id. at 3. Consequently, the NSCA believed that a Special Master would be necessary. Id. The NSCA further proposed that Stroz: (1) bill the NSCA on a monthly basis and provide the parties a monthly “workplan” addressing the anticipated work and a timeline and expected budget for that work, (2) put in place discounted pricing for all invoices going forward, (3) agree that a Special Master/Discovery Referee be appointed, and (4) accepted $1.1 million for the April through June 2018 invoices “to resolve all disputes about those invoices.” Id. at 3–4.

Mr. Aquilina responded a couple of hours later, agreeing to the NSCA's first and second proposals, but rejecting the NSCA's attempt “to inject a third party into the executed contract between Crossfit, Stroz, and the NSCA” and to gain “further reductions than those already proposed.” Id. at 2.

The following day, the NSCA indicated that it could “not accept Stroz's proposal” because “the NSCA need[ed] to consult with its technical advisors and evaluate the information provided by Stroz.” Id. at 1.

On August 27, 2018, Stroz provided the NSCA with its invoices for July and August 2018. On September 21, 2018, the NSCA's counsel sent Stroz a letter “to formally dispute certain charges in Stroz Friedberg's July and August 2018 invoices.” Supp. Report Ex. 1, ECF No. 297 at 6. In particular, the NSCA claimed that “it [wa]s not appropriate for Stroz to bill for the time spent by Stroz personnel in connection with the NSCA's dispute concerning the April, May, and June 2018 invoices.” Id. The NSCA therefore disputed $2,500 and $11,935 of block-billed entries from the July and August 2018 invoices, respectively. Id. at 6–8.

Additionally, the NSCA reiterated its view that “the Stroz e-Discovery rates are exorbitant and well above market rates, and should have been adjusted when the scope of work materially changed from a custodian-based data collection to a collection from the NSCA devices.” Id. at 9. The NSCA proposed “market rates for the relevant e-Discovery items” based on its “research and investigation.” Id. The NSCA then applied its proposed market rates to the July and August 2018 invoices, indicating that it would pay the resultant “undisputed amounts” and deposit any additional amounts into a separate, independent escrow account. Id.

The NSCA also disputed that any interest should accrue under the terms of the engagement agreement, see id. at 9–10, and articulated its view that Stroz's decision to stop work was in violation of the engagement agreement. Id. at 10.

Stroz responded by letter dated October 4, 2018, noting that it “d[id] not believe there to be any credible or legitimate dispute here, and [it] expect[ed] NSCA to pay [Stroz's] fees in full.” Id. at 12. With the letter, Stroz transmitted its invoice for September 2018, charging $168,069.20 for the months hosting charges. Id. at 12, 14. As of October 4, 2018, the NSCA owed Stroz $1,137,992.01 for work performed through September 2018. Id. at 13–14.

IX. The Discovery Disputes

As part of the sanctions Order, the Court allowed CrossFit to reopen fact and expert discovery. See ECF No. 176 at 13. After the NSCA moved, among other things, to designate a new expert witness to counter new opinions set forth in a supplemental report of CrossFit's expert, Dr. Michael R. Solomon, see ECF No. 215, on July 18, 2018, Magistrate Judge Karen S. Crawford allowed the NSCA “to designate a new expert, Dr. Itamar Simonson, to prepare an expert report to ‘counter’ (i.e., rebut) Dr. Solomon's second expert report” and to “depose Dr. Solomon about the content of his second expert report.” See ECF No. 252 at 26–27.

*10 According to the NSCA, two disputes have arisen regarding expert discovery related to Magistrate Judge Crawford's order. See Def.'s Mot. at 3. The first concerns production of documents to CrossFit that were provided to Dr. Simonson. See id.; see also Nahama Decl. Ex. Y, Ex. 272-2 at 195–97. The NSCA's counsel informed CrossFit that, “[a]t this point, Dr. Simonson is a non-designated consultant/expert pursuant to Fed.R.Civ.P. Rule 26(b)(4)(D),” but that he would “become an expert witness pursuant to Fed.R.Civ.P. Rule 26(b)(4)(C)” after being “formally designated” on September 17, 2018. Nahama Decl. Ex. Y at 194. The NSCA therefore promised to “disclose such information together with the Fed.R.Civ.P. Rule 26(b)(4)(C) information in connection with the September 17, 2018, disclosure.” Id. (emphasis in original). It appears that the NSCA did provide supplemental responses to CrossFit's tenth set of requests for production of documents and seventh set of special interrogatories on September 17, 2018. Nahama Decl. Ex. Z, ECF No. 272-2 at 199.

The second, more “significant” dispute concerns the August 17, 2018 deposition of Dr. Solomon. See Def.'s Mot. at 3–4; see also generally Ruch Reply Decl. Ex. 9, ECF No. 291-11. During the deposition, counsel for CrossFit instructed Dr. Solomon not to answer on two occasions. The first instruction was in response to a question concerning whether Dr. Solomon was aware of the true injury rate for CrossFit training. See Ruch Reply Decl. Ex. 9, ECF No. 291-11 at 362:16–19. CrossFit's counsel instructed Dr. Solomon “not to continue to provide the answer over and over to the same question.” Id. at 362:20–23. Previously in the deposition, the NSCA's counsel asked, “[Y]ou don't know if 16 percent is the injury rate or it the injury rate is higher than 16 percent or lower than 16 percent, correct? ... At the time you were doing your work, sir.” Id. at 359:4–12. Although counsel objected, see id. at 359:9–17, she allowed Dr. Solomon to answer. See id. at 359:18. Dr. Solomon responded,

Id. at 359:19–25. The NSCA's counsel then proceeded to ask, “Why would you recommend spending $18 million to disseminate information that the 16 percent injury rate in the Devor study is not correct if in fact the injury rate of CrossFit is 16 percent or higher?”, id. at 360:1–5; “You don't know, do you?”, id. at 360:14–15; “Do you have evidence that that injury rate of 16 percent is not accurate?”, id. at 360:23–24; and “Doesn't there have to be an assumption that you have been given that 16 percent is higher than the CrossFit injury rate ... ?” Id. at 361:14–17. Although counsel for CrossFit continued to object, adding that the question had been asked and answered “multiple times,” see, e.g., id. at 360:6–10, 360:16–18, 360:25–361:5, 361:21–362:2, Dr. Solomon continued to “repeat [his] response.” See id. at 362:3; see also id. at 361:6–13, 362:2–15. Ultimately, counsel for CrossFit instructed Dr. Solomon not to answer. See id. at 362:20–23

Second, counsel for CrossFit instructed Dr. Solomon not to respond to a question, see id. at 376:21–22, 377:1–3, concerning whether he “ha[d] any disagreements with Dr. Simonson's declaration,” see id. at 376:18–19, on the grounds that the question “violate[d] the magistrate's order.” Id. at 376:20–21.

As of the date of this Order, the NSCA has not moved to compel responses to any of the questions Dr. Solomon was instructed not to answer by counsel.

X. The August 2018 Status Report

On August 27, 2018, Stroz provided the parties with a final version of the previously circulated draft status report. See generally Nahama Decl. Ex. A, ECF No. 281-2 at 2–15. The Status Report was filed with the Court that same day. See ECF Nos. 261, 268.

*11 As of the date of the report, Stroz had harvested approximately 12 Terabytes of data, resulting in approximately 11 million de-duplicated documents. Nahama Decl. Ex. A at 6. Stroz noted that it had run the parties' search terms on June 29, 2018, and, after adding back native production duplicates, the report “yielded a presumptively relevant document review population of 1,245,070 documents (853,699 direct search term hits plus family members.” Id. Stroz provided a table of the direct hits and family hits per term. See id. at 6–9. The table reveals 7,859 direct hits for the term “Erratum,” id. at 6, and 59,351 direct hits for the term “crossfit.” Id. at 7.

Stroz explained that “[t]he actual timeline of execution against the Protocol has extended significantly due to a variety of factors beyond Stroz Friedberg's control.” Id. at 10. In particular, Stroz pointed to “Imprecise Custodian Identification and Inadequate Asset Inventory Records,” “Delay in Production of Native Data Sets,” “Adjustment in Keyword Search Approach,” “Failure to Produce Native Exhibit A Documents,” “Late Third Party Data Collection,” and “Legal Hurdles to Other Third Party Data Collection.” Id. at 10–12 (emphasis omitted).

With respect to custodian identification, Stroz noted that “[t]he Protocol agreed upon by the parties on September 27, 2017 contemplated the ability to ‘identify custodians, computer systems and repositories containing potentially relevant information,” but that the “NSCA was unable to determine actual relevant custodians” and the “NSCA asset inventory records were inaccurate or incomplete.” Id. at 10. Consequently, “the parties agreed to broaden the collection strategy under the Protocol to have Stroz Friedberg preserve every NSCA-owned computer, mobile device, server, and external storage device, regardless of its primary user.” Id. (emphasis in original). Ultimately, “228 additional custodians and repositories were identified beyond what was known seven months earlier at the time of the execution of the Protocol.” Id.

Regarding the delay in production of native data sets, “Phase 3 of the Protocol contemplates that NSCA provide Stroz with native copies of the prior data productions made in this proceeding and another state court proceeding.” Id. The productions, however, “were not completely produced to Stroz Friedberg until March 26, 2018, thereby delaying subsequent Phase 3 workflows.” Id.

As to the keywords, Stroz explained that the NSCA “purported[ ] to accurately set forth the keywords” used in this proceeding and in the state court to produce documents to CrossFit. Id. at 10–11. Stroz added, however, that subsequently the “NSCA has been unable to verify that the listed [in Appendix B of the Protocol] keywords, or even which keywords, were used to produce responsive documents in the proceedings.” Id. at 10. As a result, the parties agreed “to propose and reach agreement on a set of keywords to be applied.” Id. at 11. Stroz did not receive the final list until June 15, 2018. Id.

With regard to the native versions of the document in Exhibit A to CrossFit's motion for sanctions, the “NSCA has not provided the requested native files, delaying [Stroz's] forensic work in this regard.” Id.

Finally, concerning third party data collection, Stroz explained that “the Editorial Manager system, which holds publications and historical data associated with those publications, ... [is] controlled by three companies: Wolters Kluwer, Lippincott Williams & Wilkins, and ... Aries.” Id. After discussing how best to collect the necessary data, Stroz finally received cooperation from Aries to restore the relevant backups. Id. At the parties' request, however, “Aries is in the process of formulating [an] estimate.” Id.

*12 Further, Stroz has attempted to arrange for the collection of data from a computer, mobile devices, and a The Ohio State University email account belonging to Dr. Kraemer. Id. at 12. Stroz has been in communication with the Ohio Attorney General's Office to authorize the collections, and, as of August 27, 2018, was awaiting a response. Id.

Stroz explained that “the only work that remains against the Protocol is for: Stroz to collect, process, keyword search and host for review certain third party data sets; NSCA to review the presumptively relevant data set for privilege and advance non-privileged relevant data to Crossfit; NSCA to provide certain native files so that Stroz can complete required forensic analysis; and Stroz to report on eDiscovery and forensic findings.” Id. The presumptively relevant data has been ready for the NSCA's review since July 25, 2018, id., and Stroz estimates that the NSCA can complete an initial review in approximately 60 days, with CrossFit completing its review in another 60 days, and Stroz providing a final report in 30 business days. Id. at 13.

Stroz also outlined its outstanding fees and decision to stop work. See id. at 13–14. Stroz noted that its billing history with the NSCA “reflects a pattern of late payments,” and that the “NSCA has now short paid [Stroz's] May 2018 invoice and has refused to pay [Stroz's] June 2018 invoice, alleging a ‘dispute’ but without articulating or providing any specific basis to enable Stroz to identify and respond to this claim.” Id. at 14. As of August 27, 2018, the NSCA owed $1,169,706.46 to Stroz. Id. “Given the size of this receivable, NSCA's late payment history, and what can only be described as NSCA's recent bad faith in failing to specifically articulate any legitimate basis to withhold payment, Stroz Friedberg elect[ed] to stop work on this matter [as of August 27, 2018], unless and until all of [Stroz's] outstanding fees are paid in full and NSCA provides [Stroz] with a $250,000 retainer to restart work.” Id. (footnote omitted). Stroz noted that the “NSCA elected IN/OUT GB processing over standard GB processing” and “has known about our eDiscovery billing rates since they made that election.” Id.

XI. The Instant Motions and Supplemental Status Report

On August 13, 2018, counsel for the NSCA approached counsel for CrossFit to meet and confer about appointing a special master in this action. See Nahama Decl. Ex. V, ECF No. 281-4 at 174–77; see also Ruch Decl. Ex. 10, ECF No. 267-6. The instant motion was filed a week later on August 20, 2018. See ECF Nos. 257, 267. The NSCA did not provide Stroz with a copy of Defendant's Motion. See Nahama Decl. Ex. X, ECF No. 281-4 at 190.

On August 27, 2018, CrossFit filed Plaintiff's Motion, ECF Nos. 264, 269, and Stroz's Status Report. See ECF Nos. 261, 268. The Court granted Plaintiff's Motion on October 9, 2018, scheduling a live hearing for October 18, 2018, and requesting that the parties and a representative from Stroz be in attendance. See ECF No. 300. CrossFit has requested that the Court set certain deadlines to keep the forensic evaluation on track, with the goal that the NSCA complete its document review and serving privilege logs by December 18, 2018, so that Stroz may file a final report on January 18, 2019. See Pl.'s Reply at 25.

On October 4, 2018, CrossFit filed a Supplemental Status Report prepared by Stroz. See ECF Nos. 288, 297. Stroz indicated that it had received a letter from the NSCA on September 21, 2018, “claiming to formally dispute [Stroz's] July and August 2018 invoices.” ECF No. 297 at 3.

*13 Stroz also noted that it wished to clarify for the Court that “[t]he August 27 Status Report was prepared at the direction of the parties so that they could explain to the Court why initial estimated timelines for our work had to be extended, and thus why the parties needed to seek extensions of certain pre-trial and trial dates set in this matter.” Id. Stroz added that “each [party] had an opportunity to comment on the draft” circulated July 25, 2018, but that the “NSCA did not object or comment on the factors [Stroz] identified in the draft report as having contributed to changes in the original timeline – factors relating to challenges in the identification of custodians, repositories, and search terms; in the production of native files; and in obtaining other third party data collections.” Id. (emphasis in original).

Stroz further explained that the “NSCA was given a full month to review the most recent unpaid invoices they ... received electronically on July 18,” but that, “[d]uring that time, NSCA questioned two specific invoice entries and complained generally about [Stroz's] ediscovery rates.” Id. During a call on August 15, 2018, the “NSCA did not otherwise substantiate any concern about [Stroz's] bills but instead suggested that [it] needed additional time to consult with ‘its technical advisors.’ ” Id. 3–4. The parties agreed to delay finalizing the Status Report “to give the NSCA a full opportunity to further substantiate any billing concerns,” but “[t]he NSCA never did so in any specific or meaningful way.” Id. at 4. “With no resolution on the issue of payments due [Stroz], [Stroz] ceased performance and advised NSCA of its options to avoid subsequent recurring monthly charges.” Id. “[I]n good faith to move this matter ahead, [Stroz] offered significant going-forward discounts ... if NSCA paid the outstanding bills due and owing to Stroz Friedberg,” but the “NSCA declined this offer.” Id.

As of October 4, 2018, the NSCA owes approximately $1,137,992.01 to Stroz for work performed through September 30, 2018. See id. at Ex. 1, pp. 13–14.

“A court may appoint a special master under exceptional conditions.” United States v. Suquamish Indian Tribe, 901 F.2d 772, 774 (9th Cir. 1990) (citing Fed. R. Civ. P. 53(a)). Pursuant to Federal Rule of Civil Procedure 53, “a court may appoint a master ... to ... address pretrial and posttrial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.” Fed. R. Civ. P. 53(a)(1)(C). As may be inferred from the use of the word “may” in the Rule, see id., ultimately “[i]t is within a district court's discretion to appoint a master.” In re Hanford Nuclear Reservation Litig., 292 F.3d 1124, 1138 (9th Cir. 2002) (citing Johnson Controls, Inc., v. Phoenix Control Sys., Inc., 886 F.2d 1173, 1176 (9th Cir. 1989)).

“[C]ourts have tended to read [Rule 53] narrowly, closely circumscribing the range of circumstances in which reference to a master is appropriate.” Burlington N. R.R. Co. v. Wash. Dep't of Revenue, 934 F.2d 1064, 1072 (9th Cir. 1991) (quoting In re Armco, 770 F.2d 103, 105 (8th Cir. 1985)) (second alteration in original). “A pretrial master should be appointed only when the need is clear,” Fed. R. Civ. P. 53(a)(1)(C), Advisory Comm. Notes, 2003 Amendment, and “[t]he use of masters ... is restricted to situations where they are necessary to aid judges in the performance of specific judicial duties.” Burlington N. R.R. Co., 934 F.2d at 1072 (quoting La Buy v. Howes Leather Co., 352 U.S. 249, 257 (1957)) (internal quotation marks omitted).

The NSCA requests that the Court appoint a Special Master “to supervise and rule on discovery disputes that have arisen or may arise related to: (1) conducting expert witness discovery and depositions per the recent Order of Hon. Karen S. Crawford; (2) the completion of the forensic analysis of the NSCA's servers; and (3) the review of over 1.2 million documents collected during the forensic analysis and identified as potentially responsive.” Def.'s Mot. at 1.

*14 As to the question of expert discovery, CrossFit counters that “[t]he NSCA has failed to identify a single discovery dispute that necessitates the appointment of a Special Master” and that Magistrate Judge Crawford has expediently and efficiently resolved the parties' legitimate discovery disputes for over four years and is intimately familiar with the fact of the case, the Sanctions Order, and the Magistrate Order concerning expert discovery.” Pl.'s Opp'n at 25. For these reasons, the Court agrees with CrossFit that Magistrate Judge Crawford “is best positioned to continue to arbit[rate] any future disputes,” as well as any current disputes related to her July 18, 2018 Order, between the parties related to discovery matters. See id.

This brings the Court to the more troubling issue of the forensic analysis. Nearly one-and-a-half years after the Court issued the sanctions Order in May 2017, the forensic analysis ordered by the Court has ground to a halt. Although the Court had hoped that the looming threat of terminating sanctions would spur the NSCA to take seriously its discovery obligations and to cooperate with CrossFit in fulfilling them, it appears to the Court that the NSCA is on increasingly thinning ice.

The facts here speak for themselves: Despite the NSCA's obstructionism, Stroz has identified over 1.2 million presumptively responsive documents, including nearly 60,000 direct hits for the term “crossfit.” See Report at 4, 6. This alone is appalling.

Unfortunately, the parade of horribles does not end there. The forensic analysis has been delayed time and again by the NSCA's inability to identify relevant custodians, provision of incomplete or inaccurate asset inventory records, untimely production of native documents, and inability to verify the keywords used to produce responsive documents in the State Court Action or this proceeding. See id. at 7–9.[3] When the NSCA was unable to determine relevant custodians, Stroz suggested—and the parties, including the NSCA, agreed—that Stroz instead preserve every computer, mobile device, server, and external storage device owned by the NSCA. See id. at 7. Not surprisingly, this expansion in the scope of the Protocol had real costs to the NSCA, costs necessitated by the continuation of its own discovery abuses compelling imposition of the Protocol in the first place. Discovery is expensive; had the NSCA done it correctly the first time around, the Court would not have had to require the NSCA to hire Stroz. The NSCA made its bed and now it must lie in it. This is no time for buyer's remorse.

Although the Court believes that it would be well within its power to do so, having ordered the NSCA to “pay all costs relating to [the] forensic analysis,” see ECF No. 176 at 10, the Court declines to resolve the billing dispute between the NSCA and Stroz. This case is between the NSCA and CrossFit; should the NSCA require assistance in resolving its purported billing dispute with Stroz, it may hire a mediator or file its own lawsuit. The Court notes, however, that the NSCA was familiar with Stroz's charges and knew that the scope of work would increase when Stroz was required to expand the Protocol to a device-rather than custodian-based collection as a result of the NSCA's own inability to identify custodians. It appears to have been the practice that Stroz provided invoices on a quarterly basis, a practice to which the NSCA had not previously objected. The NSCA appears not to have requested an estimate from Stroz since November 2017, well before the Protocol was expanded, and in any event Stroz made clear that any estimates were not binding. Further, Stroz offers specialized eDiscovery and forensic services; that other, unidentified companies might charge less is of no moment. In any event, the legitimacy of the NSCA's fee dispute is belied by its refusal to accept the generous going-forward discounts offered to it by Stroz.

*15 This case has languished for over four years. Before the NSCA's discovery misconduct came to light, this case had been set for a final pretrial conference on March 23, 2017. See ECF No. 129. At CrossFit's request upon discovering the NSCA's misconduct, the Court continued that date to January 4, 2018. See ECF No. 155. Due to discovery delays, that date was continued another year to January 23, 2019. See ECF No. 214. CrossFit now requests that the final pretrial conference again be continued yet another year to January 24, 2020. See Pl.'s Reply at 25. The Court cannot permit the NSCA to stall indefinitely.

In short, the Court concludes that a Special Master is not appropriate or necessary under these circumstances. Appointing a Special Master would serve only to inject further unnecessary delay and cost into these already attenuated proceedings.[4] Accordingly, the Court DENIES Defendant's Motion and HEREBY SETS the following Scheduling Order:

Absent extraordinary and extenuating circumstances, there will be no further revisions to the above Scheduling Order. Should the NSCA fail to comply with the above schedule, CrossFit may renew its motion for terminating sanctions at any time.

To be clear, the Court does not order Stroz to turn over the documents to the NSCA for review. As indicated above, the Court declines to inject itself into the NSCA's purported billing dispute with Stroz. The Court understands from the October 18, 2018 hearing that Stroz considers payment in full of its outstanding accounts receivable to be a condition precedent to turning over the documents to the NSCA for review. The Court has provided seventy-five (75) days from the date on which this Order is electronically docketed to provide time for (1) the NSCA and Stroz to attempt to resolve their billing dispute, and (2) for the NSCA to complete its review of the documents in question.

Further, at the October 18, 2018 hearing, CrossFit indicated that it would be amenable to the NSCA reviewing the documents solely for privilege and not for responsiveness, as is currently contemplated under the Protocol. The Court declines to modify the Protocol. Should the parties and Stroz believe such a modification is advisable or necessary, they are free to modify the Protocol themselves.

For the foregoing reasons, the Court DENIES the NSCA's Motion to Appoint Special Master (ECF No. 257) and ADOPTS the above Scheduling Order.

*16 The Parties SHALL FILE a joint report within fourteen (14) days of the electronic docketing of this Order indicating which filings underlying Plaintiff's and Defendant's Motions may be unsealed and proposing any redactions necessary to protect Stroz's proprietary and confidential information.

IT IS SO ORDERED.

ECF Nos. 267, 268, 269, 281, 282, 283, 297, 298, and 299 were filed under seal pursuant to Orders of the Court at the request of the parties. See ECF Nos. 266, 280, 296.

Around this time, the NSCA's current counsel, Noonan Lance Boyer & Banach, LLP, substituted in for Mr. Kawabata's firm, Manning & Kass, Ellrod, Ramirez, Trester LLP. See ECF Nos. 206–208.

The NSCA now claims that Stroz misrepresents the facts in the Report. See Resp. at 14–18. The factual record detailed above, however, confirms that the statements in the Report are accurate and not partial. See also Pl.'s Reply at 2–10.

Indeed, the NSCA requests that the Court “allocate the compensation for time and expenses reasonably incurred by the Special Master to be split evenly among the parties, to ensure that the Special Master remains neutral and that no party is paying more or less for the Special Master's services.” See Def.'s Mot. at 14. The NSCA would therefore have CrossFit split the bill for the NSCA to resolve its dispute not with CrossFit, but with Stroz. Not surprisingly, CrossFit finds this proposition unpalatable. See, e.g., Pl.'s Opp'n at 3.