I. SUMMARY

*1 Pending before the Court is a Motion to Compel Discovery and Request for Sanctions (“Motion”) which was filed by Defendants/Counter-Plaintiffs Livecast 365, LLC (“Livecast”) and Charles “Chuck” Lang (“Lang”) (collectively “Moving Defendants”) and set for hearing before this Court on July 11, 2023 at 9:30 a.m. The Motion essentially seeks an order compelling Plaintiff Integrated Sports Media & Entertainment PPV, LLC (“Plaintiff” or “ISME”) to provide the Moving Defendants with further responses/documents responsive Requests for Production, further responses to Interrogatories, and a supplement to Plaintiff's initial disclosures, and awarding sanctions.[1]

Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds the Motion appropriate for decision without oral argument. The hearing on the Motion is hereby vacated and taken off calendar, and the Motion is submitted for decision.

Based upon the parties' submissions in connection with the Motion, the record, and the pertinent facts and law, and for the reasons explained below, the Court grants in part and denies in part the Motion, orders Plaintiff to produce to the Moving Defendants the items called for by this Order and orders Plaintiff and their counsel, jointly and severally, to pay the sanctions imposed by this Order within fourteen (14) days, or by such later date to which the parties may agree in writing that is consistent with the discovery cut-off.

II. BACKGROUND

A. Pleadings/Motions to Dismiss

On or about December 21, 2021, Plaintiff ISME filed the Original Complaint in Los Angeles County Superior Court Case No. 21STCV46516, suing Livecast, One Palm, Timothy “Brill” DeVore (“DeVore”), Lang, Colin Nix, and multiple Doe Defendants, and asserting the following claims: (1) breach of contract against Livecast; (2) tortious interference with a contract against One Palm and Nix; (3) breach of non-circumvention contract against One Palm and Nix; (4) breach of non-circumvention contract against Livecast, DeVore, and Lang; (5) fraud/intentional misrepresentation against Livecast, DeVore, and Lang; and (6) civil conspiracy against all Defendants. (Docket No. 1-2). On February 11, 2022, Livecast, DeVore, and Lang removed the matter to this Federal Court, initiating the instant action. (Docket No. 1). On April 14, 2022, the District Judge dismissed Plaintiff's second through fifth claims with leave to amend and dismissed Plaintiff's sixth claim without leave to amend. (Docket No. 28).

On May 13, 2022, Plaintiff ISME filed the First Amended Complaint against the same Defendants, asserting the same claims against them. (Docket No. 29). On June 30, 2023, the District Judge dismissed Plaintiff's second and fifth claims without leave to amend, dismissed Plaintiff's third claim with leave to amend, and struck Plaintiff's sixth claim as such claim had previously been dismissed with prejudice. (Docket No. 38).

*2 On July 21, 2022, Plaintiff ISME filed a Second Amended Complaint against the same Defendants, reasserting three claims – its previously enumerated first, third and fourth claims which continued to be enumerated as such: (1) breach of contract against Livecast; (3) breach of non-circumvention contract against One Palm and Nix; and (4) breach of non-circumvention contract against Livecast, DeVore and Lang. (Docket No. 39). On September 21, 2022, the District Judge dismissed Plaintiff's third enumerated claim for breach of non-circumvention contract against One Palm and Nix with leave to amend and authorized Plaintiff to add a new claim based on its non-disclosure agreement with Crown Stone Partners, Inc. (“Crown Stone”). (Docket No. 50).

On October 17, 2022, Plaintiff filed a Third Amended Complaint against Livecast, DeVore, Lang, Nix, Crown Stone and multiple Doe Defendants, asserting the following four claims: (1) breach of contract against Livecast; (2) breach of non-disclosure/non-circumvention agreement against Crown Stone and Nix; (3) breach of non-disclosure agreement against One Palm and Nix; and (4) breach of non-disclosure/non-circumvention contract against Livecast, DeVore, and Lang. (Docket No. 52). On November 16, 2022, the District Judge denied Defendants' motion to dismiss the Third Amended Complaint (alternatively, “TAC”). (Docket No. 62).

The operative Third Amended Complaint alleges the following:

Plaintiff ISME produces and distributes pay-per-view and closed-circuit sports events. (TAC ¶ 10). Livecast specializes in the creation of internet-based streaming television channels and related technology. (TAC ¶¶ 10, 11). During the relevant time periods, Lang was the Chief Executive Officer of Livecast and DeVore was the Chief Technology Officer of Livecast. (TAC ¶¶ 3, 4).

On September 11, 2020, ISME proposed a business partnership with Livecast involving the creation of an online channel to stream mixed martial arts (MMA) events. (TAC ¶ 15). On September 23, 2020, in anticipation of further negotiations regarding a potential partnership, ISME and Livecast entered into an agreement governing the disclosure of confidential information and interactions with third parties (“ISME/Livecast Non-Circumvention Agreement”). (TAC ¶¶ 16, 17; TAC Ex. 1). The ISME/Livecast Non-Circumvention Agreement governed the disclosure of confidential agreement and interactions with third parties. (TAC Ex. 1).

On November 18, 2020, ISME and Livecast agreed in writing to create and invest in a new company called ISM 365, LLC (ISM 365) (“ISM 365 Agreement”). (TAC ¶¶ 18, 19; TAC Ex. 2). The ISM 365 Agreement anticipated an ISM 365 MMA launch event on October 22, 2021 and required Livecast to provide ISM 365 with a website and the technology to stream the event. (TAC. ¶ 19). The agreement also required Livecast to make three initial contributions to ISM 365 totaling $826,500. (TAC ¶ 20). Livecast later agreed to make nine contributions totaling $2.5 million. (TAC ¶ 20).

At some point Crown Stone and Nix, who controlled Crown Stone's operations, expressed an interest in investing in ISME. (TAC ¶¶ 8, 38, 39, 68). Nix proposed a $100 million investment to Tony Martinez (“Martinez”), President and owner of ISME, after they were introduced by their respective financial advisors, Albert Cantong (“Cantong”) and Mark Beychok (“Beychok”). (TAC ¶ 38). Nix represented to Martinez and Cantong that he would be doing business through Crown Stone, and that all Crown Stone business would be conducted through an attorney, James Sharmat (“Sharmat”). (TAC ¶¶ 39, 68).

On March 5, 2021, Crown Stone and ISME, through Sharmat and Martinez, entered into a non-disclosure/non-circumvention agreement (“Crown Stone Agreement”). (TAC ¶¶ 40, 65; TAC Ex. 3). Nix represented to Martinez and Cantong that the purpose of the Crown Stone Agreement was to protect the contracts and financial assets of the parties. (TAC ¶ 40). After learning of Nix's proposal to invest $100 million, Martinez informed Lang and DeVore, and introduced Nix to them. (TAC ¶¶ 41, 71).

*3 Subsequently, and without explanation, Nix ceased any mention of Crown Stone, and instead only referred to One Palm, as the company through which he was conducting business. (TAC ¶ 41). Having switched the entity he was using in his dealings with Plaintiff, Nix suggested once again that they enter into a confidentiality agreement. (TAC ¶ 42). On March 25, 2021, One Palm and ISM 365 entered into a memorandum of understanding (“One Palm MOU”). (TAC ¶ 42, Ex. 4). The One Palm MOU contained a confidentiality provision, which continued from March 24, 2021 until May 8, 2021 and prohibited One Palm and ISM 365 from disclosing the existence or contents of the discussions between them to any third party without the other's consent. (TAC Ex. 4).

In late April 2021, ISME ended discussions with One Palm regarding One Palm's potential investment in ISM 365 after learning that Nix had been convicted on federal securities fraud charges. (TAC ¶ 46). Nix assertedly informed an investor that he intended to circumvent ISME because of ISME's refusal to do business with Nix due to his criminal background. (TAC ¶ 73). Nix also assertedly disclosed to a potential investor unaffiliated with One Palm the existence and details of his negotiations with Plaintiff. (TAC ¶ 74).

ISME alleges that soon after its discussions with One Palm ended – between April 21, 2021 and April 23, 2021 – Nix met up with Lang and DeVore in California to make an offer on Livecast's technology. (TAC ¶¶ 47, 48). With the financial backing of the aforementioned investors, Nix assertedly was able to offer significant sums of money to Livecast, DeVore and Lang, resulting in their decision to pursue Nix's offer instead of meeting their obligations to ISME. (TAC ¶ 77). ISME claims that after Nix met with Lang and DeVore, communication between ISME and Livecast degraded significantly. (TAC ¶ 52).

ISME alleges that it expended significant time and money preparing for ISM 365's launch event. (TAC ¶ 24). This included securing a venue in Southern California, hiring a promotor, issuing press releases, creating social media pages, selling tickets, and booking fighters. (TAC ¶¶ 24, 54). ISME further alleges that Livecast failed to make the required monetary contributions to ISM 365 and never set up a website and streaming channel for the ISM 365 launch event. (TAC. ¶¶ 22, 25). As a result, ISME had to delay the October 22, 2021 ISM 365 launch event indefinitely. (TAC ¶ 35). On November 24, 2021, Livecast sent a letter to ISME purporting to cancel the ISM 365 Agreement. (TAC ¶ 36).

ISME's first claim essentially alleges that Livecast breached the ISM 365 Agreement by failing to make the required monetary contributions to ISM 365 and by failing to create a website and streaming channel for the ISM 365 launch event. (TAC ¶¶ 58-63).

ISME's second claim essentially alleges that Crown Stone and Nix breached the Crown Stone Agreement by disclosing the existence of their negotiations with ISME and details of Livecast's technology assets to third-party investors and engaging in negotiations directly with Livecast, DeVore and Lang to the complete exclusion and detriment of ISME. (TAC ¶¶ 64-78).

ISME's third claim essentially alleges that One Palm and Nix violated the One Palm MOU by disclosing information about the Proposed Transaction to third party investors. (TAC ¶¶ 79-98).

ISME's fourth claim essentially alleges that Livecast, DeVore and Lang breached the ISME/Livecast Non-Circumvention Agreement by communicating directly with One Palm and Nix without ISME's consent. (TAC ¶¶ 99-107).

ISME alleges that Plaintiff has suffered “damage to its reputation, loss of pay-per-view streaming revenue, loss of future cable pay-per-view revenue, damaged IWG brand, damaged sponsorship for IWG, and penalties for cancel[l]ation of IWG event” (TAC ¶ 37), and prays for (1) compensatory damages according to proof, but in excess of $20 million; (2) reimbursement of lost profits according to proof; (3) all accrued interest and late charges; (4) reasonable attorneys' fees and costs according to proof; and (5) such other and further relief as the Court deems proper and just. (TAC at 17).

*4 On December 7, 2022, Defendants Livecast, DeVore and Lang (the “Livecast Defendants”) filed an Answer and Counterclaims against ISME, ISME's President Tony Martinez, ISME's executive producer Stanley Stephen Huntsman (“Huntsman”), for fraud, breach of contract, violation of the Ohio Deceptive Trade Practices Act, and Declaratory Judgment. (Docket No. 64). The Livecast Defendants essentially allege that ISME and its agents made false representations about their experience and expertise in producing and distributing live sporting events, so induced Livecast to enter into the ISM 365 Agreement, made false representations to induce Livecast to make $300,000 in capital contributions, and covered up ISME's asserted misuse of Livecast's funds. (Defendants' Memo at 4; Counterclaims [Docket No. 64] ¶¶ 11-79).

Also on December 7, 2022, Nix, One Palm, and Crown Stone filed an Answer and Counterclaim against ISME for abuse of process, the latter of which was voluntarily dismissed on February 2, 2023. (Docket Nos. 65, 83).

On January 16, 2023, ISME and Martinez filed an Answer to the Livecast Defendants' Counterclaims. (Docket No. 78). On February 21, 2023, Huntsman filed an Answer to the Livecast Defendants' Counterclaims against him. (Docket No. 87).

B. Pertinent Discovery Facts/Deadlines

On January 10, 2023, the Moving Defendants served discovery requests, including: (1) Requests for the Production of Documents (containing 29 requests) (“Document Requests”); and (2) Interrogatories (containing 7 interrogatories) (“Interrogatories”) (collectively “Discovery Requests”). (Palys Decl. ¶ 3; Palys Exs. H, I).

On January 24, 2023, Plaintiff ISME served its initial disclosures. (Palys Decl. ¶ 12; Palys Ex. G). Plaintiff identified the following documents and tangible things in its possession, custody or control that it may use to support its claims: (1) documents relating to communications between ISME and Livecast; (2) documents relating to communications between ISME and Colin Nix; (3) documents relating to communications between Colin Nix and third party investors; (4) documents reflecting the business dealings, including all agreements, between ISME and Livecast; (5) documents reflecting the amount of payments made by Livecast to ISME; (6) documents reflecting the extent of ISME and Mr. Martinez's relationship with Doug Jones; (7) documents reflecting the extensive preparations of ISME in preparation of the International War Games event; (8) documents reflecting the extensive amount of damages assertedly caused by “the unfortunate actions of Livecast, Colin Nix, and the other Defendants”; (9) all discovery responses served by any party to this action, including supplements thereto; and (10) all documents or communications disclosed by any part to this action. (Palys Ex. G).

As to the “computation of damages,” Plaintiff's initial disclosures state:

(Palys Ex. G [Docket No. 111-8 at Page 10 of 11]).

On or about February 15-16, 2023, Plaintiff served its objections and responses to the Moving Defendants' Document Requests and Interrogatories and produced documents in response to the Document Requests. (Palys Decl. ¶¶ 13-15; Palys Exs. H-J).

On March 21, 2023, the Moving Defendants' counsel sent Plaintiff's counsel a Local Rule 37-1 meet and confer letter requesting that counsel telephonically meet and confer regarding Plaintiff's assertedly deficient initial disclosures, responses to Interrogatory Nos. 1-3, and 6, and responses/ production in response to the Moving Defendants' Document Requests. (Palys Decl. ¶¶ 4, 5; Palys Exs. B, C). Counsel telephonically met and conferred on March 28, 2023. (Palys Decl. ¶ 6; Palys Ex. D). During such meet and confer, Plaintiff's counsel assertedly agreed to address and remedy all of the asserted deficiencies raised in Moving Defendants' counsel's March 21, 2023 letter and to supplement its product and interrogatory responses within fourteen (14) days (i.e., by April 11, 2023). (Palys Decl. ¶¶ 6, 7; Palys Ex. D). More specifically, Plaintiff's counsel assertedly agreed to (1) identify whether its claim for $4.1 in damages/lost profits from the launch project is accurate – or whether it should instead be $2.05 million – given that it would have only gotten 50% of profits from the project; (2) explain how its claim for $20 million in damages is calculated; (3) explain what amounts are attributable to the specific categories of damages claimed; (4) explain Plaintiff's theory on how the Livecast Defendants allegedly caused those damages as opposed to other parties; (5) produce native versions of documents it had produced, (6) supplement its document production with missing documents; (7) produce periodic account statements/checks from a Wells Fargo bank account; and (8) to the extent it was invoking Fed. R. Civ. P. 33(d) in responding to interrogatories, identify with particularity the specific records to which it was referring. (Palys Decl. 7; Palys Ex. D).

*5 On April 14, 2023, having not received any supplemental production or interrogatory responses, Moving Defendants' counsel left a voicemail message for Plaintiff's counsel and emailed Plaintiff's counsel, requesting that he call Moving Defendants' counsel. (Palys Decl. ¶ 6, 8, 9; Palys Ex. E). On April 20, 2023, Moving Defendants' counsel again emailed Plaintiff's counsel, noting that he had neither seen Plaintiff's overdue/agreed upon supplemental production nor received a response to his call/email relating to the same. (Palys Decl. ¶ 10; Palys Ex. F).

As noted above, Moving Defendants filed the Motion on June 13, 2023, along with, among other things, a declaration of Moving Defendants' counsel attesting that on May 22, 2023, he sent Moving Defendants' portion of a joint stipulation to Plaintiff's counsel and that, as of the execution of Moving Defendants' counsel's declaration on June 13, 2023, Plaintiff's counsel had not responded or provided Plaintiff's portion of the joint stipulation or supplemented its responses/production of documents in response to the Discovery Requests. (Docket No. 111; Palys Decl. ¶¶ 6, 11, 16, 17; Palys Ex. K).

As noted above, on June 20, 2023, Plaintiff filed its Opposition to the Motion, and on June 27, 2023, the Moving Defendants' filed their Reply and supporting documents. (Docket Nos. 113, 115).

Two attorneys worked on the Motion on behalf of the Moving Defendants – Stefan M. Palys and Sasha Shariati. (Palys Supp. Decl. ¶¶ 2). Shariati's hourly rate is $350/hour and she spent a total of 20 hours in preparing the joint stipulation and supporting documents and converting the same to the Motion, but Palys reduced/wrote off some of her time. (Palys Supp. Decl. ¶ 2). Palys's hourly rate is $650/hour and he spent 1.5 hours working on the Reply. The Moving Defendants' request an award of attorneys' fees in the amount of $7,975 ((350 x 20 = 7000) + (650 x 1.5 = 975)) for expenses incurred associated with the Motion. (Palys Supp. Decl. ¶ 4).

The initial expert witness exchange deadline is July 14, 2023; the rebuttal expert witness exchange deadline is August 11, 2023; the discovery cut-off is September 22, 2023. (Docket No. 76).

III. PERTINENT LAW

Pursuant to Fed. R. Civ. P. 26(a)(1)(C), a party must make the initial disclosures called for by Fed. R. Civ. P. 26(a)(1)(A) at or within fourteen days after the parties' Rule 26(f) Conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action, and states the objection in the proposed discovery plan. More specifically, a party must provide to other parties: (i) the name, and if known, the address and telephone number of each individual likely to have discoverable information – along with the subjects of that information – that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; (ii) a copy – or a description by category and location – of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party – who must also make available for inspection and copying as under Fed. R. Civ. P. 34, the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and (iv) for inspection and copying as under Fed. R. Civ. P. 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment (“initial disclosures”).

*6 Pursuant to Rule 26(e), a party must supplement its initial disclosures in a timely manner if the party learns that in some material respect the disclosures are incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing or as ordered by the court. Fed. R. Civ. P. 26(e)(1). Pursuant to Fed. R. Civ. P. 37(c), a party who fails to provide the information called for by Rules 26(a) and 26(e) may be prohibited from using that information to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless. See Fed. R. Civ. P. 37(c)(1). Alternatively or in addition thereto, the court may impose other sanctions. See Fed. R. Civ. P. 37(c)(1). It is the non-disclosing party's burden to prove that its failure to comply with Rule 26(a) was “substantially justified” or is “harmless.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001).

Pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Information within the foregoing scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1).

Pursuant to Rule 33 of the Federal Rules of Civil Procedure, any party may serve upon any other party written interrogatories within the scope of Rule 26(b). Fed. R. Civ. P. 33(a)(2). A party must respond to interrogatories by answer or objection; the ground for the objection must be stated with specificity. See Fed. R. Civ. P. 33(b)(3)-(4). General or boilerplate objections are improper – especially when a party fails to submit any evidentiary declarations supporting such objections. A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006). “Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3).

A party responding to interrogatories has the option of producing business records where: (1) the answer to the interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing the records, and (2) the burden of deriving or ascertaining the answer is substantially the same for either party. Fed. R. Civ. P. 33(d). When a party produces business records, the party must “specify[ ] the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could[.]” Id.

Pursuant to Rule 34, any party may serve on any other party a request for the production or inspection of documents within the scope of Rule 26(b) which are in the responding party's possession, custody or control. Fed. R. Civ. P. 34(a). Documents are deemed to be within a party's possession, custody or control if the party has actual possession, custody or control thereof or the legal right to obtain the property on demand. In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995), cert. dismissed, 517 U.S. 1205 (1996). Accordingly, a party has an obligation to conduct a reasonable inquiry into the factual basis of its responses to discovery, and based on that inquiry, a party responding to a Rule 34 production request is under an affirmative duty to seek that information reasonably available to it from its employees, agents, or others subject to its control. A. Farber and Partners, Inc., 234 F.R.D. at 189 (citations and internal quotation marks omitted).

*7 Unless excused by a protective order, in response to a request for the production of documents a party must, within 30 days of service thereof and as to each item or category, either: (1) state that the inspection will be permitted/production will be made; or (2) state with specificity the grounds for objecting to the request, including the reasons, and state whether any responsive materials are being withheld on the basis of that objection. Fed. R. Civ. P. 34(b)(2)(A)-(C). If the responding party states that it will produce documents, such production must be completed no later than the time specified in the request or another reasonable time specified in the response. Fed. R. Civ. P. 34(b)(2)(B).

If a party fails timely to object to discovery requests, such a failure generally constitutes a waiver of any objections which a party might have to the requests. See Fed. R. Civ. P. 33(b)(4) (any ground not stated in timely objection to interrogatory waived unless court, for good cause, excuses failure); Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1991) (“It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection.”) (citation omitted), cert. dismissed, 506 U.S. 948 (1992); Apple Inc. v. Samsung Electronic Co., Ltd., 2012 WL 952254, *2 (N.D. Cal. Mar. 20, 2012) (“Objections not interposed in a timely initial response may not be held in reserve and interposed after the period allowed for response...”) (citation omitted); Ramirez v. County of Los Angeles, 231 F.R.D. 407, 409-10 (C.D. Cal. 2005) (court declined to consider objections that were not asserted in responding party's original discovery responses based upon party's failure timely to make such objections).[2]

Pursuant to Rule 37 of the Federal Rules of Civil Procedure, a party may move for an order compelling disclosure or discovery on notice to other parties and all affected persons, and any such motion must include a certification that the movant has in good faith conferred or attempted to confer with the person/party failing to make disclosure or discovery in an effort to obtain it without court action. Fed. R. Civ. P. 37(a)(3). If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. Fed. R. Civ. P. 37(a)(3)(A). If a party fails to answer an interrogatory, to produce documents, to respond that inspection will be permitted, or to permit inspection, the party may likewise move for an order compelling an answer, designation, production, or inspection. Fed. R. Civ. P. 37(a)(3)(B). For purposes of Rule 37(a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond. Fed. R. Civ. P. 37(a)(4).

Pursuant to Rule 37(a)(5)(A), if a party's discovery motion is granted, the court must, after giving an opportunity to be heard,[3] order a party/attorney whose conduct necessitated the motion to pay the moving party's reasonable expenses incurred in making the motion, including attorney's fees unless the moving party filed the motion before attempting in good faith to obtain the discovery without court action, the opposing party's conduct was substantially justified, or other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A). On the flip side, if the motion is denied, the court must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees unless the motion was substantially justified or other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(B). If a discovery motion is granted in part and denied in part, the court may after giving an opportunity to be heard, apportion the reasonable expenses for the motion. Fed. R. Civ. P. 37(a)(5)(C).

*8 Local Rules 37-1, et seq. govern the filing of motions to compel discovery in the Central District of California. Such rules essentially contemplate that when a discovery dispute exists, the following shall occur: (1) the moving party will send the opposing party a meet and confer letter which comports with Local Rule 37-1,[4] with the opposing party having ten days to confer; (2) thereafter, if the parties are unable to resolve their differences, the moving party shall send the moving party's portion of a joint stipulation which comports with Local Rule 37-2.1 & 37-2.2 (and all supporting documents) to the opposing party, with the opposing party having seven days to insert its position and return the joint stipulation (and all supporting documents) to the moving party; (3) the moving party shall then sign the joint stipulation and send the joint stipulation to the opposing party who must sign and return the joint stipulation by the end of the next business day; (4) the moving party shall then file the joint stipulation along with a notice of motion, setting the matter for hearing not sooner than 21 days later/the court's next subsequent regular hearing date; and (5) the parties may file supplemental memoranda not later than fourteen days before the hearing date. See Local Rules 37-1, 37-2, 37-2.1, 37-2.2, 37-2.3, 37-3. Alternatively, in the event that the opposing party fails to fulfill any of its foregoing obligations, Local Rule 37-2.4 allows the moving party to file a motion (not a joint stipulation) with a declaration attesting to the opposing party's failure, along with a notice of motion, setting the matter for not sooner than 28 days later/the court's next subsequent regular hearing date, with the opposing party's opposition due 21 days before the hearing date and the moving party's reply due 14 days before the hearing date.[5] See Local Rule 37-2.4. Local Rule 37-4 provides that the failure of any counsel to comply with or cooperate in the foregoing procedures may result in the imposition of sanctions

IV. DISCUSSION AND ORDERS

The Moving Defendants argue that (1) Plaintiff's initial disclosures relative to the computation of damages are inadequate essentially because Plaintiff does not explain how it calculated its damages, the amount attributable to each category of damages sought, or the amount of damages assertedly attributable to each defendant; (2) Plaintiff's responses to two interrogatories calling for damages information (Interrogatory Nos. 1 & 2)[6] are likewise inadequate because they fail to give information about how Plaintiff arrived at $4.1 million in claimed lost profits, to attribute amounts to the various categories of damages it claims, and to give any explanation for how Plaintiff arrived at $20 million in total damages; (3) Plaintiff's response to Moving Defendants' Document Requests are inadequate because (a) Plaintiff has not produced documents in the format requested (e.g., a format which includes metadata and to which Plaintiff did not object) and instead produced a single unitized 300-page .pdf document, which is partially redacted and not accompanied by a privilege log; (b) Plaintiff's responses do not comport with Rule 34(b)(2) in that they do not state whether any responsive materials are being withheld on the basis of a stated objection; and (c) Plaintiff apparently has not undertaken an adequate search for responsive documents because, among other things, it has not produced numerous emails that it must have, has not included attachments to numerous emails that it has produced, and has not produced multiple categories of documents identified in Plaintiff's initial disclosures; (4) Plaintiff's response to an interrogatory essentially calling for information regarding Plaintiff's experience/track record regarding other events (Interrogatory No. 3) which is assertedly relevant to Plaintiff's damages claim and Moving Defendants' fraud counterclaim is incomplete/deficient;[7] and (5) Plaintiff's response to an interrogatory essentially calling for information about Plaintiff's use of Moving Defendants' capital contribution (Interrogatory No. 6) which is assertedly relevant to Moving Defendants' fraud counterclaim is insufficient and amounts to a defective invocation of Rule 33(d).[8]

*9 Plaintiff's Opposition to the Motion is brief (less than five pages) and essentially argues that the Motion is (1) improperly brought under Rule 37(a) because Plaintiff did not fail to respond and instead timely produced responses, engaged in a meet and confer, and agreed to provide supplemental responses; (2) premature because Plaintiff will rely on expert witness testimony in support of its claimed damages, the deadline for the initial exchange of expert information is July 14, 2023, and the current discovery cut-off is September 22, 2023 such that Moving Defendants will not be “sandbagged”; (3) the Motion is unnecessary because Plaintiff is in the process of drafting supplemental discovery responses and compiling a further document production; and (4) Plaintiff has acted “with substantial justification and in good faith” such that monetary sanctions should not be awarded. (Opp. at 1-5).

Moving Defendants' Reply points out that Plaintiff (1) does not dispute that the discovery that the Moving Defendants seeks is proper and relevant; (2) does not dispute that the parties met and conferred and that Plaintiff agreed to fully supplement its response by April 11, 2023; (3) does not dispute that it failed to supplement its responses by the agreed upon deadline; (4) does not provide a date by which it will supplement its responses; and (5) does not provide any explanation as to why it failed to meet the deadline it agreed to or why it failed to complete the Local Rule 37-2 joint stipulation process. (Reply at 2-3). Moving Defendants further assert that Plaintiff's contentions in its Opposition are without merit. (Reply at 3-4).

The Court largely, thought not entirely, agrees with Moving Defendants and accordingly, grants in part and denies in part the Motion.

First, contrary to Plaintiff's suggestion and notwithstanding the fact that Plaintiff timely responded to the Discovery Requests, the Motion is properly brought under Rule 37(a) because, for purposes of Rule 37(a), an incomplete disclosure, answer, or response is treated as a failure to disclose, answer, or respond (see Fed. R. Civ. P. 37(a)(4)) and the Motion is predicated on Plaintiff's failure to provide complete initial disclosures, Interrogatory responses, Document Request responses and disclosure of documents responsive to the Document Requests.

Second, the Court rejects Plaintiff's assertion that the Motion is “premature” in light of the schedule in this case. Discovery has been open for months and the evidentiary record before the Court – which Plaintiff has failed to supply evidence to contradict – reflects that Plaintiff agreed to provide supplemental responses and a further production of documents by April 11, 2023 and, at least as of the filing of the Reply on June 27, 2023, had not done so. The September 22, 2023 discovery cut-off is approaching and, particularly since the initial expert disclosure deadline is imminent (July 14, 2023), there is no legitimate basis for Plaintiff to fail to complete its production of discovery relating to at least its damages by the deadline set herein. Further, as Moving Defendants suggest, it is somewhat hypocritical for Plaintiff to argue that a discovery motion is premature as Plaintiff itself recently prosecuted a motion to compel directed to other defendants.

Third, the Court rejects Plaintiff's assertion that the Motion is “unnecessary” because Plaintiff assertedly is in the process of drafting supplemental discovery responses and compiling a further document production. Aside from the fact that such assertion is unsupported by a declaration or other evidence, Plaintiff has already missed the April 11, 2023 deadline it apparently originally agreed to (notwithstanding the assertedly “arbitrary” nature of such agreed upon deadline), Plaintiff has not even given the Court a date by which it will produce the outstanding supplemental responses/production, and Moving Defendants are certainly not required to delay seeking judicial relief based on Plaintiff's unsupported assertions, particularly in light of Plaintiff's track record of missing an agreed upon production deadline. Rather, Moving Defendants are entitled to receive the requested discovery in a timely fashion so that they can assess it, conduct any follow-up discovery deemed appropriate, and prepare for motion practice/trial in an orderly manner.

*10 Fourth, as to the merits of the Motion relative to the computation of damages in Plaintiff's initial disclosures, the Court agrees with Moving Defendants that Plaintiff's initial disclosures on such topic to date are conclusory and insufficient to comport with the requirements of Rule 26(a)(1)(A) and Rule 26(e) (see Defendants' Memo at 8-9), grants the Motion, and orders Plaintiff to supplement its initial disclosures relative to the computation of damages. More specifically, Plaintiff must supplement its initial disclosures to include its computation of each category of damages it claims it suffered due to the Moving Defendants' conduct (e.g., damage to its reputation, loss of pay-per-view streaming revenue, loss of future cable pay-per-view revenue, damaged IWG brand, damaged sponsorship for IWG, penalties for cancellation of IWG event), how it calculated the $20 million alleged total damages, how it calculated the $4.1 alleged lost profits and, to the extent it has not already done so, must produce copies of all documents/evidentiary material on which such computations are based (excluding documents that are privileged/protected from disclosure), including materials bearing on the nature and extent of the injuries it claims to have suffered. Plaintiff is cautioned that its failure to do so may result in an order prohibiting it from using that information as evidence in this action unless it can demonstrate that such failure is substantially justified or is harmless.

Fifth, as to the merits of the Motion relative to Interrogatory Nos. 1 and 2 – see supra note 6 – the Court again agrees with Moving Defendants (see Defendants' Memo at 9-11), overrules Plaintiff's objections thereto, grants the Motion, and orders Moving Defendants to provide supplemental responses to such interrogatories that (1) provide a detailed calculation of the damages it claims that the Livecast Defendants caused it; (2) itemize what amount of damages sought are compensatory damages, late charges, lost profits, damages to ISME's reputation, loss of pay-per-view streaming revenue, loss of future cable pay-per-view revenue, damages to the IWG brand, damages to sponsorship for IWG, and penalties for cancellation of the IWG event, and any other categories of damages claimed; and (3) describe its theory on and identify how the Livecast Defendants' actions or omissions caused each item of damages.

Sixth, as to the merits of the Motion relative to Interrogatory No. 3 – see supra note 7 – the Court again agrees with Moving Defendants (see Defendants' Memo at 14-15), overrules Plaintiff's objections to such interrogatory, grants the Motion, and orders Plaintiff to provide a supplemental response to such interrogatory describing all events that ISME has distributed and/or produced from its formation to the present, including: the nature of the event, how many tickets were sold for the event, what pay-per-view or closed-circuit rights were granted or used to broadcast the event, and the gross revenue and net profit generated by each event.

Seventh, as to the merits of the Motion relative to Interrogatory No. 6 – see supra note 8 – the Court agrees with Moving Defendants (see Defendants' Memo at 15-16), overrules Plaintiff's objections to this interrogatory, finds that Plaintiff's apparent invocation of Rule 33(d) relative thereto is deficient, and orders Plaintiff to provide a verified narrative supplemental response to this interrogatory identifying with particularity, all recipients of any portion of Livecast's $300,000 capital contribution, the amount of funds each recipient received, and the precise goods or services they provided in exchange for the same.

Eighth, as to the merits of the Motion relative to the Document Requests, the Court grants in part and denies in part the Motion.

Although the record is imperfect in this regard,[9] it appears to be undisputed that Plaintiff's production of electronic stored documents (a single 300-page .pdf document without metadata) is not in the format called for by the Document Requests and that Plaintiff did not object to Moving Defendants' direction to produce documents in a specified format. See Fed. R. Civ. P. 34(b)(1)(C) (document requests may specify form in which electronically stored information is to be produced); 34(b)(2)(D) (response may state objection to requested form for producing electronically stored information); see also Defendants' Memo at 11-12). Accordingly, the Motion is granted to the extent it seeks an order compelling Plaintiff to re-produce previously produced documents in the format called for in the Document Requests. Further, any future production of electronically stored information by Plaintiff in response to the Document Requests must likewise be in the format called for in the Document Requests.

*11 Further, the Court agrees with Moving Defendants that Plaintiff's objections/responses to the Document Requests do not comport with Rule 34(b)(2)(C) in that they do not state whether responsive materials are being withheld on the basis of the specified objections. (Defendants' Memo at 13-14; Palys Ex. H). Accordingly, the Motion is granted to the extent it seeks an order compelling Plaintiff to provide supplemental responses to the Document Requests which comport with Rule 34(b)(2)(C) and Plaintiff is ordered to provide supplemental responses to the Document Requests which state whether any responsive documents are being withheld on the basis of one or more of the specified objections.

Next, the Court addresses whether any further orders should issue relative to the Document Requests in light of Moving Defendants' suggestion that Plaintiff's production is incomplete in multiple respects. Moving Defendants' general point is that Plaintiff may not have conducted a reasonably diligent search for responsive items. (Defendants' Memo at 12-13). Moving Defendants note, for example, that email attachments are missing from those documents which have been produced. (Defendants' Memo at 12). They also refer to multiple specific documents requests in a somewhat serial fashion without providing the verbatim text and responses thereto as required. (Defendants' Memo at 12-13) (referencing RFP Nos. 1, 11 & 26, RFP Nos. 2-9, 12, 23, 10, 14-16, 24-25). While it makes sense to require Plaintiff to provide clearly missing attachments to emails/other documents that have already been produced, to order Plaintiff to conduct a further search for responsive documents, and to provide information regarding its collection procedure in light of the assertedly deficient production, the Court does not view it to be appropriate on this record – at least in light of the manner presented/argued – to order any other production of specific documents in response to specific requests. Accordingly, the Court grants the Motion to the extent seeks an order compelling Plaintiff to (1) produce missing attachments to emails/other documents that have already been produced; (2) conduct a further reasonably diligent search for documents responsive to the Documents Requests; (3) produce supplemental responses (consistent with the Court's prior orders herein) after such search; and (4) provide Moving Defendants with a declaration from a person/persons with personal knowledge providing a description of Plaintiff's collection efforts, i.e., details that establish that the search for responsive documents actually constitutes a reasonably diligent search and orders Plaintiff to do so. The Court, however, denies the Motion without prejudice to the extent it seeks an order compelling Plaintiff to produce any other specific documents in response to the Document Requests at this juncture.

Finally, the Court addresses whether Plaintiff/its counsel should be required to pay the reasonable expenses incurred by Moving Defendants in connection with the Motion – $7,975 – pursuant to Rule 37 and/or Local Rule 37-4. Initially, the Court finds that Moving Defendants attempted in good faith to obtain the discovery in issue without court action before filing the Motion, that Plaintiff/its counsel received notice of the possibility of sanctions when Moving Defendants filed the Motion, that they have been afforded an adequate opportunity to address the issue in their Opposition and that an evidentiary hearing would not aid this Court's decisionmaking process on the matter. See Fed. R. Civ. P. 37(a)(5); Paladin Associates, Inc., 328 F.3d at 1164-65. As the Court has granted in part and denied in part the Motion, the imposition of sanctions under Rule 37 is discretionary; the imposition of sanctions under Local Rule 37-4 are likewise discretionary. On the one hand, the Court acknowledges the mixed nature of its current order and the fact that it is not uncommon for the completion of damages discovery to be somewhat dependent on experts. On the other hand, the Motion has mostly been granted, the outstanding discovery issues are not entirely damages-related, and Plaintiff offers no real explanation for its failure to adhere to the agreed upon April 11, 2023 deadline to cure such deficiencies and to provide supplemental discovery, its apparent failure to respond to opposing counsel's inquiries regarding the same, and the failure to provide Plaintiff's portion of a joint discovery stipulation as required by Local Rule 37-4. Based upon its assessment and balancing of the facts here, the Court, in an exercise of discretion, views it to be appropriate to impose sanctions of $4000 – approximately half of the attorneys' fees incurred by Moving Defendants in connection with the Motion – against Plaintiff and Plaintiff's counsel, jointly and severally.

*12 The Court cautions Plaintiff and its counsel that any failure to comply with this Order and/or any further failure to comply with their discovery obligations may subject them to potential additional monetary sanctions and non-monetary sanctions, as provided in Fed. R. Civ. P. 37(b)(2), including the issuance of a recommendation or order prohibiting Plaintiff from supporting its claims or from introducing evidence; (b) striking Plaintiff's pleadings in whole or in part; and/or (c) terminating sanctions.

IT IS SO ORDERED.