Resolute Forest Products, Inc. v. Greenpeace International

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RESOLUTE FOREST PRODUCTS, INC., Case No. 17-cv-02824-JST (KAW) et al., 8 ORDER GRANTING IN PART AND Plaintiffs, DENYING IN PART PLAINTIFFS’ 9 MOTION FOR SANCTIONS; v. GRANTING IN PART AND DENYING 10 IN PART DEFENDANTS’ MOTION GREENPEACE INTERNATIONAL, et al., FOR SANCTIONS 11 Defendants. 12 Re: Dkt. Nos. 459, 461

13 Plaintiffs Resolute Forest Products, Inc., Resolute FP US, Inc., Resolute FP Augusta, LLC, 14 Fibrek General Partnership, Fibrek U.S., Inc., Fibrek International, Inc., and Resolute FB Canada, 15 Inc. (collectively, “Resolute”) filed the instant action against Defendants Greenpeace 16 International, Greenpeace, Inc., Greenpeace Fund, Inc., Daniel Brindis, Amy Moas, Matthew 17 Daggett, and Rolf Skar (collectively, “Greenpeace”). (First Am. Compl. (“FAC”) at 1, Dkt. No. 18 185.) Resolute brings defamation claims based on Defendants’ December 2016 and May 2017 19 statements that Resolute was operating in the Montagnes Blanches (“Challenged Statements”). 20 Pending before the Court are: (1) Resolute’s motion for sanctions, and (2) Greenpeace’s motion 21 for sanctions. (Resolute Mot. for Sanctions, Dkt. No. 461; Greenpeace Mot. for Sanctions, Dkt. 22 No. 459.) 23 Having considered the parties’ filings, the relevant legal authority, and the arguments made 24 at the October 20, 2022 hearing, the Court GRANTS IN PART AND DENIES Resolute’s motion 25 for sanctions, and GRANTS IN PART AND DENIES IN PART Greenpeace’s motion for 26 sanctions. 27 1 I. BACKGROUND 2 Resolute is comprised of corporate entities in the forest products industry, which harvest 3 wood for the manufacture and sale of paper products. (FAC ¶¶ 24-30.) Greenpeace is comprised 4 of non-profit environmental advocacy and several of their employees. (FAC ¶¶ 31-33, 36-39.) 5 Resolute alleges that in December 2012, non-party Greenpeace Canada released a false report 6 about Resolute’s purported failure to comply with the Canadian Boreal Forest Agreement 7 (“CBFA”). (FAC ¶¶ 89, 225.) Resolute alleges that this was part of a Greenpeace campaign to 8 target Resolute with misrepresentations regarding their sustainability practices in Canada. (See 9 FAC ¶¶ 5-7.) Plaintiffs subsequently filed suit against Greenpeace Canada (“Greenpeace Canada 10 Action”). (Tabaksblat Decl., Exh. 11 (“Resolute Litig. Hold”), Dkt. No. 459-1.) 11 On May 21, 2015, Resolute sent Greenpeace USA1 a cease and desist letter, complaining 12 of statements made by Defendant Brindis that Resolute was destroying Canada’s boreal forest and 13 negatively affecting caribou, and that Resolute’s Forest Stewardship Council (“FSC”) certificate 14 had been suspended. (Tabaksblat Decl., Exh. 5.) On May 31, 2016, Resolute filed the instant 15 action. (Dkt. No. 1.) That same day, Quebec’s Minister of Forests, Wildlife, and Parks issued a 16 statement that a map used by Greenpeace Canada to demonstrate that Resolute was operating in 17 the Montagnes Blanches was misleading. (FAC ¶¶ 212, 217.) Greenpeace subsequently issued 18 the Challenged Statements; specifically, in December 2016, Defendant Moas wrote a letter to 19 Resolute’s customers, claiming that Resolute was operating in the Montagnes Blanches. (FAC ¶ 20 304.) In May 2017, Defendant Greenpeace, Inc. published a report titled “Clearcutting Free 21 Speech,” which again stated that Resolute was logging in the Montagnes Blanches. (FAC ¶¶ 308- 22 09.) 23 A highly contentious discovery process followed, culminating in the instant competing 24 motions for sanctions. Both parties assert significant discovery failures warranting a multitude of 25 sanctions, as described below. 26 1 Resolute has alleged that non-party Greenpeace Fund and Defendant Greenpeace, Inc. constitute 27 an entity called “Greenpeace USA.” (See Dismissal Order at 14, Dkt. No. 246.) The presiding 1 A. Resolute’s Motion for Sanctions 2 On March 15, 2022,2 Resolute filed its motion for sanctions, asserting that Greenpeace had 3 destroyed Skype messages, including those between May 31, 2016 (the date of the Quebec 4 minister’s statement regarding the Montagnes Blanches map) and December 16, 2016 (the date of 5 Defendant Moas’s letter). (Resolute Mot. for Sanctions at 3.) 6 On June 9, 2015, after receipt of the cease and desist letter, Greenpeace’s counsel 7 circulated a litigation hold to Defendants Skar, Brindis, and Daggett; the litigation hold was also 8 forwarded to Defendant Moas. (Dkt. No. 461-7 at 3.) On June 8, 2016, after the filing of the 9 instant action, Greenpeace’s counsel sent a litigation hold, requiring staff to preserve any data that 10 may relate to the lawsuit, including all “electronic records.” (Id. at 2-3.) On January 22, 2019, the 11 presiding judge dismissed all claims except for Resolute’s defamation claim based on the 12 Challenged Statements, specifically noting that Resolute had adequately alleged that Defendants 13 knew of the Quebec Minister’s public statement at the time they made or distributed the 14 Challenged Statements. (Dismissal Order at 19.) 15 Greenpeace witnesses have stated that they communicated extensively through Skype. 16 (E.g., Brindis Depo. at 331:10-12, Dkt. No. 461-16.) Most Greenpeace witnesses also testified 17 that they made sure not to delete any of their Skype chats. (E.g., Moas Depo. at 314:3-19, Dkt. 18 No. 460-9; Daggett Depo. at 16:10-15, Dkt. No. 460-11.) Defendant Brindis, however, testified 19 that he realized “at a certain moment” after the lawsuit was filed that he had an auto-delete setting 20 on his personal Skype account, resulting in messages being saved for only a few days or weeks. 21 (Brindis Depo. at 330:16-331:5, Dkt. No. 460-12.) Once he realized it, he changed the setting to 22 make sure they were being maintained. (Id. at 330:18-20.) At the hearing, Greenpeace stated that 23 it was not sure when this occurred, but assumes it was around December 2017 based on Defendant 24 Brindis’s available Skype data. 25 On September 18, 2020, Greenpeace produced Skype messages for four custodians: 26 2 Resolute’s motion for sanctions was originally filed on March 15, 2022, and Greenpeace’s 27 motion for sanctions was originally filed on May 20, 2022. (Dkt. Nos. 435, 455.) On May 24, 1 Defendants Moas, Skar, Brindis, and Daggett. (Tabaksblat Decl. ¶ 8.) This production consisted 2 of over 9,600 Skype messages during the period between December 20, 2016 and December 21, 3 2017. (Tabaksblat Decl. ¶ 8.) For these custodians, Skype data from the Cloud was only available 4 from April 20, 2017 on. (See Greenpeace Opp’n at 4-5.) It appears that in 2016 and 2017, 5 Microsoft migrated Skype from a peer-to-peer system to a centralized system, impacting where 6 data was stored. (Williams Decl. ¶ 36(c), Dkt. No. 460-1.) Skype has a published statement on its 7 website that messages will not be available if they are “dated back to April 2017.” (Williams 8 Decl. ¶ 37.) It is not apparent that Microsoft warned of the loss or provided notice of the loss prior 9 to August 2020. (Williams Decl. ¶¶ 37, 42.) Older messages were retrieved from laptops and 10 phones. (See Greenpeace Opp’n at 4-5.) 11 Following the September 18, 2020 production, the parties subsequently agreed to an 12 attorney-supervised call between the parties’ forensic technology experts to discuss the issue of 13 the lost Skype data. (Tabaksblat Decl. ¶ 9.) Greenpeace’s counsel also responded to a list of 14 written questions on February 4, 2021. (Tabaksblat Decl. ¶ 9, Exh. 6.) Thereafter, Greenpeace’s 15 counsel did not respond to follow-up questions and stated they would not participate in the call 16 between the experts. (Tabaksblat Decl. ¶ 10.) Greenpeace’s counsel instead stated that if 17 Resolute wanted additional information, they would need to pursue it through formal discovery. 18 (Tabaksblat Decl. ¶ 10.) 19 Resolute subsequently subpoenaed Microsoft for the Skype data. (Tabaksblat Decl. ¶ 13.) 20 Greenpeace worked with nine custodians to execute consent forms to allow Microsoft to disclose 21 the custodians’ Skype data. (Koonce Decl. ¶ 19, Dkt. No. 460-7.) On March 1, 2021, Microsoft 22 stated that the consent forms had been altered, and would need to be resubmitted “without any 23 changes to them other than filling them out and signing.” (Tabaksblat Decl., Exh. 11.) Microsoft 24 also stated that no data had been preserved as to: (1) matt.daggett, (2) gaia21 st2005, (3) GP 25 Amplification Skype group, (4) Boreal Forest Skype Group, (5) CORE TEAM Skype group, (6) 26 NRO Skype group, (7) https://join.skype/com/HFJifxA6nz6P, (8) 27 https://join.skype.com/mBIWvm7sjP8b, and (9) live.jhpape. (Id.) Resolute made no further 1 In summary, the following Skype production has been made (or not made) for Defendants 2 Brindis, Moas, Skar, and Daggett as custodians: 3 Custodian Production Period Missing Messages Period 4 Daniel Brindis 1/3/2017 – 11/6/2020 5/31/2016 – 1/3/2017 5 Matthew Daggett 4/20/2017 – 1/31/2020 5/31/2016 – 4/20/2017 Amy Moas 12/19/2016 – 3/5/2021 5/31/2016 – 12/19/2016 6 Rolf Skar 9/23/2016 – 3/4/2021 5/31/2016 – 9/23/2016 7 (Resolute Reply at 6, Dkt. No. 462; Greenpeace Opp’n at 4-5.) In addition to the above Skype 8 production, Greenpeace has produced from other custodians 61 Skype conversations 9 (approximately 2,852 pages) from between May 31, 2016 and December 2016, as well as 74 10 Skype chats from December 2016. (Koonce Decl. ¶¶ 10-11.) This production included chats with 11 Defendants Brindis, Moas, Skar, and Daggett. (Koonce Decl. ¶ 11.) 12 B. Greenpeace’s Motion for Sanctions 13 Greenpeace, in turn, has filed a motion for sanctions, asserting that Resolute violated the 14 Court’s January 20, 2021 order requiring Resolute to respond to Greenpeace’s damages 15 interrogatories. (Greenpeace Mot. for Sanctions at 3-4.) Greenpeace also asserts that Resolute has 16 failed to adequately preserve and search for evidence, causing spoliation and the tardy production 17 of over 14,000 documents (out of 25,000). (Id. at 13-14.) 18 i. Damages Interrogatories 19 On September 5, 2019, Greenpeace served Resolute with interrogatories seeking the bases 20 for Resolute’s damages claims. (Second Koonce Decl. ¶ 2, Dkt. No. 459-1.) On December 2, 21 2020, the parties filed a joint discovery letter to compel Resolute’s response to certain 22 interrogatories. Specifically, Interrogatory No. 7 required that Resolute state: (1) all facts showing 23 that its reputation had been damaged, (2) a full description of each item or element of damage, (3) 24 the amount of each element of damage, (4) how each element of damage was calculated, and (5) a 25 description of the source of each calculation of each element of damage. (See Discovery Order at 26 1, Dkt. No. 381.) Interrogatory No. 13 required Resolute to identify how its market share 27 compared to the market share of their competitors from January 2015 to the present. (Id. at 3-4.) 1 due to Greenpeace’s conduct. (Id. at 4.) In each instance, Resolute asserted that the 2 interrogatories sought premature expert discovery. (Id. at 1, 4.) 3 On January 20, 2021, the Court found that Resolute’s responses were not adequate. As to 4 Interrogatory No. 7, the Court found that Resolute had failed to explain why it could not, for 5 example, describe each item of damage or explain how the actionable statements damaged it. 6 (Discovery Order at 2.) While the Court acknowledged that damages could be difficult to 7 calculate, this did not mean Resolute could avoid identifying and explaining the information it did 8 possess. (Id.) Accordingly, the Court ordered Resolute “to respond to Interrogatory No. 7 in full, 9 except that Plaintiffs need only identify material facts, rather than all facts. While specific 10 calculations of damages may require expert reports, Plaintiffs must still identify and provide the 11 underlying information.” (Id. at 3.) The Court also ordered Resolute to provide all information 12 needed to substantiate its claim that it lost market share because of the Challenged Statements 13 (Interrogatory No. 13), and to identify each asset that diminished in value due to Greenpeace’s 14 conduct (Interrogatory No. 14). (Id. at 4.) 15 In compliance with the Court’s order, on February 20, 2021, Resolute served its 16 supplemental responses to Interrogatory Nos. 7, 13, and 14. (Second Koonce Decl., Exh. 1 (“Feb. 17 20, 2021 Interrogatory Resp.”), Dkt. No. 459-2.) In February 2022, Greenpeace sent letters 18 seeking clarification regarding damages; for example, Greenpeace noted that Resolute had 19 identified lost volumes of sale from UPM, Burrows, Fibermark, Finch Paper, P&G, Clearwater, 20 Kimberly Clark, and West Linn, but that no documents had been produced showing that these 21 companies received the Challenged Statements or otherwise altered their purchases from Resolute 22 as a result. (Second Koonce Decl., Exh. 3.) Greenpeace thus asked Resolute to confirm if they 23 did not intend to base their damages claims on their relationships with these customers, and to 24 confirm that they did not intend to base their damages claims on relationships with any other 25 customers other than those identified in the interrogatory responses. (Id.) On March 1 and 9, 26 2022, Greenpeace followed up on this issue, but received no response. (Second Koonce Decl., 27 Exhs. 4, 5.) 1 a new response to Interrogatory Nos. 7, 13, and 14. (Second Koonce Decl., Exh. 8 (“Apr. 19, 2 2022 Interrogatory Resp.”); see also Dkt. Nos. 447, 450.) The April 19, 2022 responses included 3 the following new information: 4 February 20, 2021 Response Additional Information in April 19, 2022 5 Response 6 Interrogatory No. 7 (Facts re Damages) Lost profits of approximately $40 million Lost profits from book publishers and end 7 between April 2014 and December 2017, users declining to do business with Resolute or including increased costs and/or lost declining to purchase from the area defined by 8 profitability in customer relationships resulting Greenpeace as the Montagnes Blanches, from the modification or purchasing habits resulting in higher cost wood fiber and 9 and/or requirements. Lost sales from UPM, bleaching costs. Other book publishers 10 Burrows, Fibermark, Finch Paper, P&G, declined to expand business or print more Clearwater, Kimberly Clark, and West Linn. prominent authors on Resolute’s paper. Some 11 pulp customers terminated their relationship with Resolute or declined to do business. 12 Mitigation costs from addressing customer No additional information inquiries regarding the Challenged Statements, 13 fees and costs from the retention of public 14 relations and marketing firms, and legal fees and costs associated with evaluating claims 15 arising from the Challenged Statements. Diversion of employee resources to respond No additional information 16 to customer inquiries and prepare responses to 17 the Challenged Statements. The resources could otherwise have been spent on pursuing 18 new customers and business, focusing on strategic business opportunities, and 19 maintaining and servicing other existing customers. 20 Lost opportunities from decrease in paper 21 demand, requiring Resolute to offline paper machines in Calhoun and continue to idle 22 paper machines in Alma. Other paper competitors did not have any substantial 23 papermill closures during this time. Additionally, Resolute did not pursue certain 24 strategic acquisitions due to an inability to 25 obtain financing or shareholder buy-in or because of concern that the acquisitions would 26 subject Resolute to additional exposure to Greenpeace’s claims about Resolute’s 27 activities in the Canadian Boreal Forest. Kenogami, Dolbeau, and St. Felicien mills; in 1 2015, the projected EBITDA was $800 2 million, but Resolute’s EBITDA during the relevant period did not exceed $500 million. 3 Restrictions on debt capacity and sales of shares, resulting in the Resolute Board 4 cautioning management not to take on additional debt to finance capital projects or 5 other investments in 2016/2017. Resolute 6 encountered issues obtaining financing due to concerns about the Challenged Statements. 7 Interrogatory No. 13 (Market Share) Identified documents reflecting indicators of Resolute required to offline paper machines in 8 Resolute’s market share. Alma and close machines in Calhoun, while competitors did not close paper mills for 9 substantial periods of time during this period. 10 Interrogatory No. 14 (Diminished Assets) Human capital, goodwill, accounts receivable, Loss of market shares, declined enterprise 11 customer contracts and business relationships, value, depressed share price and shareholder FSC certifications and credits, supply equity, foregone profits, and the offlining of 12 guarantees, wood processing plants and mills, paper machines. 13 raw materials for wood and paper products, inventory of wood and paper products. 14

15 (Feb. 20, 2021 Interrogatory Resp.; Apr. 19, 2022 Interrogatory Resp.3) 16 Resolute asserts that this response merely “expounded on the information provided in prior 17 responses based on new information learned through the course of ongoing discovery and 18 Plaintiffs’ extensive work with experts during the intervening year.” (Second Tabaksblat Decl. ¶ 19 25, Dkt. No. 469-1.) Resolute also states it made a corresponding document production in March 20 2022. (Second Tabaksblat Decl. ¶ 25.) Greenpeace, in turn, asserts that Resolute made a 21 document production of several dozen additional documents that appeared related to the new 22 damages claims a few days after sending the April 2022 interrogatory responses. (Second Koonce 23 Decl. ¶ 18.) 24 On April 28, 2022, Resolute’s Rule 30(b)(6) representative on damages, Richard Garneau, 25 was deposed. (Second Koonce Decl. ¶ 20.) When asked what book publisher customer-related 26

27 3 It appears other new information regarding damages were added in response to interrogatories 1 damages Resolute had suffered because of the Challenged Statements, Mr. Garneau repeatedly 2 stated that these facts would be addressed by the damages expert, and that: “my understanding is 3 that the discovery is still going on and that we’re going to, at some point, have all the facts . . . .” 4 (Garneau Depo. at 148:3-149:25, Dkt. No. 459-11.) 5 Additionally, on September 12, 2022, Resolute moved to extend various deadlines because 6 its damages expert had “requested and reviewed several hundred documents that were not . . . 7 produced to Defendants.” (Dkt. No. 475 at 2-3.) Greenpeace opposed on the ground that Resolute 8 was essentially asking for additional time “to collect and produce more documents that already 9 should have been produced in fact discovery.” (Dkt. No. 476 at 2-3.) On September 16, 2022, the 10 presiding judge denied Resolute’s motion in a text-only entry. (Dkt. No. 477.) On September 21, 11 2022, in a written order expanding on the prior denial, the presiding judge observed that 12 Resolute’s damages “expert has now uncovered hundreds of new documents ‘concerning damages 13 theories that were previously disclosed to defendants and explored during fact discovery,’ a 14 description that suggests these documents should have been produced during fact discovery.” 15 (Dkt. No. 478 at 2.) 16 ii. Document Production 17 a. Litigation Hold 18 Greenpeace asserts that Resolute failed to institute a litigation hold in this case, resulting in 19 the failure to preserve evidence. Specifically, in April 2014, Plaintiffs issued a “Litigation Hold 20 and Document Preservation Notice” (“Resolute Litigation Hold”), requiring that recipients 21 preserve all actions related to the Greenpeace Canada Action. (Second Koonce Decl., Exh. 11 22 (“Resolute Litigation Hold”).) The Resolute Litigation Hold stated that the Greenpeace Canada 23 Action alleged that “the Defendants made false and defamatory statements about Resolute and that 24 the Defendants are threatening and intimidating Resolute’s customers.” (Id.) The Resolute 25 Litigation Hold required the retention of records, which “were likely prepared or generated in the 26 period between 2009 to present and may relate to” allegations regarding Resolute harvesting in the 27 Broadback Valley Forest, Resolute’s pensions, Resolute’s Align family of paper products, 1 publications, and Greenpeace’s communications with Resolute’s customers, stakeholders, and 2 investors. (Id. at 2.) The Resolute Litigation Hold was ultimately circulated among 56 Resolute 3 employees. (Vachon Decl. ¶ 13, Dkt. No. 469-25.) Resolute’s legal department also circulated 4 quarterly litigation hold update e-mails to employees subject to the litigation hold, and received 5 audit committee reports. (Vachon Decl. ¶ 14.) Questionnaires were also distributed to employees; 6 the questionnaire listed categories of documents that should be preserved, including “[d]ocuments 7 regarding the Montagne Blanches region and Greenpeace’s false allegation that Resolute built 8 logging roads in violation of the Canadian Boreal Forest Agreement (CBFA).” (Vachon Decl. ¶ 7, 9 Exh. 1.) 10 Although it appears no litigation hold was issued specific to the instant action, custodians 11 in this action testified that they understood the Resolute Litigation Hold extended to records 12 concerning all of Greenpeace’s statements, not just those in the Greenpeace Canada Action. (See 13 Romeo Depo. at 105:1-2, Dkt. No. 469-13 (explaining that he preserved all documents that 14 referred to Greenpeace), Goulding Depo. at 329:22-24, Dkt. No. 469-20 (explaining that if it 15 mentioned Greenpeace, he would not delete it).) Additionally, Resolute backed up all e-mail 16 account data at the end of the year. (Papps Decl. ¶ 13, Dkt. No. 46-29.) Individuals were also 17 given more e-mail storage or overflow e-mail folders (the “Archives”) to store e-mail 18 communications that needed to be preserved. (Papps Decl. ¶ 6.) Several custodians, including 19 Seth Kursman, Kevin Goulding, and Carolyn Pinto, had documents stored on the Archives. 20 (Papps Decl. ¶ 12.) 21 b. Document Production 22 Greenpeace also asserts that Resolute failed to adequately identify, collect, search, and 23 produce documents, resulting in spoliation. Greenpeace served their initial discovery requests in 24 September 2019. (Second Tabaksblat Decl. ¶ 2.) Resolute then requested Greenpeace’s input on 25 e-discovery metrics such as search terms and proposed custodians, but Greenpeace did not 26 respond. (Second Tabaksblat Decl. ¶¶ 2, 5.) Accordingly, Resolute identified five custodians, 27 including Richard Garneau (CEO), Yves Laflamme (successor President and CEO), Seth Kursman 1 customer communications), John Lafave (Senior Vice President, Pulp and Paper Sales and 2 Marketing), Marc Bedard (Vice President, Forestry), and Francois Dumoulin (predecessor Vice 3 President, Forestry). (Second Tabaksblat Decl. ¶ 8.) Resolute asserts it advised collecting 4 documents from the supervisor of each relevant department because it was Resolute’s business 5 practice to copy or forward all substantive communications to the department supervisor. 6 (Resolute Opp’n at 6.) Between January 31, 2020 and December 31, 2020, Resolute 7 “substantially completed” the production of these custodians’ responsive documents, as well as all 8 documents produced by Resolute in the Greenpeace Canada Action. (Second Tabaksblat Decl. ¶¶ 9 10-11.) This amounted to approximately 10,564 documents. (Second Koonce Decl. ¶ 60.) Of 10 these, approximately 1,000 documents lack custodian metadata, 700 lack date metadata, and half 11 lack hash value metadata. (Second Koonce Decl. ¶ 60.) Greenpeace states that Resolute 12 represented that they completed their document production in December 2020. (Second Koonce 13 Decl. ¶ 64.) 14 In August 2021, Greenpeace asserts it first became aware of “holes” in Resolute’s 15 discovery during the deposition of Mr. Goulding, during which Mr. Goulding identified several 16 categories of documents that had not been produced. (Second Koonce Decl. ¶ 27.) On September 17 9 and 13, 2021, Greenpeace’s counsel inquired about documents that appeared missing, including 18 documents related to damages and mill closures. (Second Koonce Decl., Exhs. 12, 13.) On 19 October 7, 2021, Resolute produced 1,200 documents. (Second Koonce Decl. ¶ 30.) On October 20 8, 2021, Greenpeace for the first time inquired about the search metrics Resolute used to collect 21 and produce documents. (Second Koonce Decl. ¶ 31; Second Tabaksblat Decl. ¶ 15.) Resolute, in 22 response, informed Greenpeace that it had searched the documents of the six custodians, out of 23 sixteen witnesses originally identified by Resolute as having relevant knowledge. (Second 24 Koonce Decl. ¶ 32.) 25 Between October 2021 and January 2022, Resolute collected and produced documents for 26 the additional custodians requested by Greenpeace. (Second Tabaksblat Decl. ¶ 19.) Greenpeace 27 asserts that “these productions often came mere days before depositions.” (Second Koonce Decl. 1 production. (Second Tabaksblat Decl. ¶ 22.) On February 10, 2022, Resolute also disclosed that 2 it had not searched the Archives, which totaled nearly 4,000 documents. (Second Koonce Decl. ¶ 3 43.) Resolute asserts that the Archives were compromised almost entirely of duplicates of 4 previously produced documents but from different custodian inboxes. (Second Tabaksblat Decl. ¶ 5 21.) In total, approximately 14,362 additional documents were produced between October 2021 6 and February 2022. (Second Koonce Decl. ¶ 62; see also Second Tabaksblat Decl. ¶ 22.) 7 Greenpeace also asserts that during depositions, individuals testified as to the existence of 8 documents that were not produced or, in some instances, not searched. For example, Mr. 9 Goulding, the direct supervisor of the salespeople who interacted with publishing customers that 10 allegedly received the Challenged Statements, testified that he used texts for “[t]ypically short 11 messages that have some urgency for you to issue the text,” but that he was never asked to 12 produce any text messages related to Greenpeace. (Second Koonce Decl. ¶ 44; Goulding Depo. at 13 326:23-327:7, 331:2-7, Dkt. No. 459-18.) Mr. Romeo testified that he texted with other 14 employees and customers, but that he had no ability to go back and look at his texts. (Romeo 15 Depo. at 107:12-18, 109:13-110:2, Dkt. No. 459-19.) Mr. Romeo also testified that he would take 16 handwritten notes from meetings with customers, but that he was never asked to produce them. 17 (Romeo Depo. at 99:23-100:8.) Mr. Kursman, Vice President, Communications, Sustainability & 18 Government Affairs, testified that he sent “tens of thousands” of e-mails, while Resolute states 19 that Mr. Kursman was the custodian or duplicate custodian of more than 3,700 documents. 20 (Kursman Depo. at 147:15-16, Dkt. No. 459-22; Blair Decl. ¶ 20, Dkt. No. 469-30.) 21 II. LEGAL STANDARD 22 A. Rule 37(e) 23 Federal Rule of Civil Procedure 37(e) concerns the failure to preserve electronically stored 24 information (“ESI”). “Rule 37(e) sets forth three criteria to determine whether spoliation of ESI 25 has occurred: (1) the ESI ‘should have been preserved in the anticipation or conduct of litigation’; 26 (2) the ESI ‘is lost because a party failed to take reasonable steps to preserve it’; and (3) ‘[the ESI] 27 cannot be restored or replaced through additional discovery.’” Porter v. City & Cty. of S.F., No. 1 (quoting Fed. R. Civ. P. 37(e)). If these criteria are satisfied and there is “prejudice to another 2 party from loss of the information,” the court “may order measures no greater than necessary to 3 cure the prejudice.” Fed. R. Civ. P. 37(e)(1). 4 If, however, the court finds that “the party acted with the intent to deprive another party of 5 the information’s use in the litigation,” the court may impose more severe sanctions, including an 6 adverse inference jury instruction or terminating sanctions. Fed. R. Civ. P. 37(e)(2). “Unlike Rule 7 37(e)(1), there is no requirement that the court find prejudice to the non-spoliating party under 8 Rule 37(e)(2).” Porter, 2018 U.S. Dist. LEXIS 151349, at *7. Intent, in turn, requires more than 9 “[n]egligent or even grossly negligent behavior.” Fed. R. Civ. P. 37 advisory committee’s note 10 (2015). Rather, “courts have found that a party’s conduct satisfies Rule 37(e)(2)’s intent 11 requirement when the evidence shows or it is reasonable to infer, that a party purposefully 12 destroyed evidence to avoid its litigation obligations.” Porter, 2018 U.S. Dist. LEXIS 151349, at 13 *8. 14 B. Rule 37(b) 15 Rule 37(b)(2)(A) concerns the impositions for sanctions for failure to comply with “an 16 order to provide or permit discovery.” Sanctions may include evidentiary sanctions, adverse jury 17 instructions, or terminating sanctions. A district court “has great latitude in imposing sanctions for 18 discovery abuse.” Dahl v. City of Huntington Beach, 84 F.3d 363, 367 (9th Cir. 1996). Any such 19 sanction, however, must be “just” in light of the particular circumstances of the case. Ins. Corp. of 20 Ireland v. Compagnie des Bauxites, 456 U.S. 694, 707 (1982). When choosing among possible 21 sanctions, the court should consider a sanction designed to: (1) penalize those whose conduct may 22 be deemed to warrant such a sanction; (2) deter parties from engaging in the sanctioned conduct; 23 (3) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (4) 24 restore a prejudiced party to the same position he or she would have been in absent the 25 wrongdoing. See Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976); 26 Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983). 27 Rule 37 also mandates the imposition of monetary sanctions on a party that fails to obey a 1 attorney’s fees, caused by the failure, unless the failure was substantially justified or other 2 circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). “Willfulness, 3 fault, or bad faith is not required for the imposition of monetary sanctions under Rule 37(b)(2).” 4 In re NCAA Student-Athlete Name & Likeness Licensing Litig., No. C 09-1967 CW, 2012 U.S. 5 Dist. LEXIS 155511, at *22 (N.D. Cal. Oct. 30, 2012) 6 III. DISCUSSION 7 A. Resolute Motion for Sanctions – Skype Production 8 i. Reasonable Steps to Preserve Skype Messages 9 With respect to the three criteria for finding spoliation, the parties do not dispute that the 10 Skype messages should have been preserved. Thus, the Court first considers whether the Skype 11 messages were “lost because a party failed to take reasonable steps to preserve it.” Fed. R. Civ. P. 12 37(e). 13 Here, Greenpeace contends that it took reasonable steps to preserve the Skype messages by 14 issuing a litigation hold, ensuring that custodians understood not to delete ESI, and utilizing cloud- 15 based systems to retain data. (Greenpeace Opp’n at 14.) Moreover, Greenpeace contends that the 16 data loss was outside of its control, as the loss of Skype messages on the cloud was due to the 17 system-wide Microsoft change in April 2017. (Id.) Resolute, in turn, points to Defendant 18 Brindis’s admission that he failed to turn off the auto-delete setting on his personal Skype account. 19 (See Resolute Reply at 10.) Resolute further argues that Greenpeace should have taken further 20 actions to preserve the Skype messages, such as backing up their existing messages onto a central 21 laptop. (Id. at 10-11.) 22 In support, Resolute cites Colonies Partners, L.P. v. County of San Bernardino, No. 23 518CV00420JGBSHK, 2020 WL 1496444 (C.D. Cal. Feb. 27, 2020), report and recommendation 24 adopted, No. 518CV00420JGBSHK, 2020 WL 1491339 (C.D. Cal. Mar. 27, 2020). (Resolute 25 Reply at 10.) There, the custodian deleted e-mails by closing his e-mail account, such that the 26 account was no longer accessible. Colonies Partners, L.P., 2020 WL 1496444, at *3-4. The 27 custodian also lost text messages when he obtained a new cell phone, and regularly deleted text 1 defendants failed to take reasonable steps to preserve the evidence because it appeared no one had 2 informed the custodian “of his obligation to retain such information, which suggests there was no 3 formal litigation hold in place[.]” Id. at *8. 4 The Court finds that Resolute has not demonstrated that Greenpeace failed to take 5 reasonable steps to preserve the Skype messages. Unlike Colonies Partners, L.P., Greenpeace did 6 issue a litigation hold. More importantly, with the exception of Defendant Brindis’s failure to turn 7 off the auto-delete setting on his personal Skype account, there is no showing that individual 8 Defendants actively deleted or caused Skype messages to be lost. Rather, it appears that the 9 individual Defendants assumed that the Skype messages would be saved as long as they did not 10 delete them. Instead, in April 2017, Microsoft migrated Skype to a new system, affecting the 11 storage of data. (Williams Decl. ¶ 36.) As the Advisory Committee has noted, Rule 37(e) “is 12 inapplicable when the loss of information occurs despite the party’s reasonable steps to preserve. 13 For example . . . information the party has preserved may be destroyed by events outside the 14 party’s control--the computer room may be flooded, a ‘cloud’ service may fail, a malign software 15 attack may disrupt a storage system, and so on.” Fed. R. Civ. P. 37(e) advisory committee’s notes 16 (2015). In such circumstances, the courts “need to assess the extent to which a party knew of and 17 protected against such risks.” Id. Yet here, Resolute provides no information to suggest this data 18 migration did not occur, that messages saved on the Cloud prior to April 2017 were actually 19 saved, or that users were warned of this potential loss. 20 While Resolute argues that Greenpeace should have backed up the messages on a 21 computer, it does not adequately explain why Greenpeace’s reliance on the messages being 22 retained is not reasonable, particularly in the absence of any evidence in the record that such 23 reliance was not warranted. In its papers and at the hearing, Resolute pointed to Greenpeace’s 24 failure to back up the messages, issue a notice to Microsoft to preserve the messages, or use a paid 25 plan to preserve the messages, but Resolute cites no authority in support. 26 Resolute speculates that Greenpeace intentionally deleted the Skype messages, the Court 27 finds no such showing. (Resolute Mot. for Sanctions at 14.) Resolute points to the timing, 1 2016 letter “smacks of bad faith.” (Id.) Yet Resolute acknowledges in its reply that Defendant 2 Skar did provide messages from September 23, 2016 on. (See Resolute Reply at 6.) Additionally, 3 there is no evidence that the individual Defendants deleted or were even capable of deleting the 4 Skype messages from a certain period. Indeed, Greenpeace’s expert notes that when analyzing the 5 Skype interface, he “found no settings that would permit a user to execute automated deletes 6 and/or remove all messages prior to a specified date.”4 (Williams Decl. ¶ 29.) Thus, it does not 7 appear possible for the individual Defendants to have intentionally deleted Skype messages prior 8 to a certain date. Moreover, if Greenpeace truly intended to delete Skype messages, it is unclear 9 why they did not delete Skype messages from all custodians. Indeed, other custodians and 10 Greenpeace Canada provided messages from the relevant period, including messages with the 11 individual Defendants. (See Greenpeace Opp’n at 4.) Resolute’s reliance on the loss of Skype 12 messages is insufficient; “[t]he bare fact that evidence has been altered or destroyed does not 13 necessarily mean that the party has engaged in sanctions-worthy spoliation.” Reinsdorf v. 14 Skechers U.S.A., Inc., 296 F.R.D. 604, 626 (C.D. Cal. 2013); see also Solutions v. Falck N. Cal. 15 Corp., No. 19-cv-06104-SBA (JCS), 2021 U.S. Dist. LEXIS 202622, at *22 (N.D. Cal. Sep. 10, 16 2021) (“Falck’s insistence that any inconsistency or missing documentation is proof of misconduct 17 is similarly speculative.”). 18 Accordingly, on this record, the Court finds that with the exception of Defendant Brindis’s 19 admitted failure to turn off the auto-delete setting on his personal Skype account, Resolute has 20 failed to demonstrate that Greenpeace failed to take reasonable steps to preserve the evidence. 21 Thus, the Court next considers the third criteria for spoliation as to the Skype messages lost as a 22 4 In a footnote, Resolute asserts a right to depose Mr. Williams in connection with his declaration, 23 but does not otherwise dispute Mr. Williams’s declaration, provide a declaration from its own expert, or provide any basis to doubt Mr. Williams’s findings and conclusions. (Resolute Reply at 24 13 n.7.) As the party seeking sanctions under Rule 37(e)(2), Resolute has “the burden of establishing spoliation by demonstrating that [the non-moving party] destroyed documents and 25 had some notice that the documents were potentially relevant to the litigation before they were destroyed.” Ryan v. Editions Ltd. West, Inc., 786 F.3d 754, 766 (9th Cir. 2015); see also Hinitz v. 26 Intero Real Estate Servs., No. 18-cv-05623-BLF, 2020 U.S. Dist. LEXIS 247947, at *12 (N.D. Cal. May 13, 2020) (finding that the moving party had not satisfied its burden of demonstrating 27 that the destruction of Facebook videos and posts was intentional, particularly where the non- 1 result of Defendant Brindis’s failure. 2 ii. Restoration or Replacement Through Additional Discovery 3 As an initial matter, Greenpeace disputes whether there are any Skype messages lost. On 4 the record, it is unclear when Defendant Brindis had the auto-delete setting on, although 5 Greenpeace indicated at the hearing that it was likely until December 2017. Moreover, 6 Greenpeace points to the fact that other custodians and Greenpeace Canada did provide Skype 7 messages for the period between May and December 2016, including conversations with 8 Defendant Brindis. (See Koonce Decl. ¶ 10, Exh. A.) Thus, Greenpeace argues that while 9 Defendants Moas, Skar, Brindis, and Daggett may have lost Skype messages, any conversations 10 between them and other custodians or Greenpeace Canada would have been produced. 11 (Greenpeace Opp’n at 17-18.) As Resolute points out, however, this would not cover 12 conversations between the individual Defendants or other employees and third-parties for whom 13 Skype data was not produced or restored. (Resolute Reply at 7.) Thus, the Court finds it likely 14 that Skype messages have, in fact, been lost. 15 Next, Greenpeace contends that Resolute cannot demonstrate that Defendant Brindis’s 16 Skype messages could not be restored or replaced through additional discovery, namely subpoenas 17 to Microsoft. (Greenpeace Opp’n at 18.) The parties worked together to execute consent forms to 18 allow Microsoft to disclose Skype data, but the parties dispute whether Resolute made further 19 attempts to subpoena the data from Microsoft after the original consent forms were rejected. 20 (Koonce Decl. ¶ 20.) Notably, at the hearing, Greenpeace itself seemed rather doubtful that 21 Microsoft would have the messages. Indeed, given that Microsoft deleted data prior to April 22 2017, the Court is skeptical that the data Resolute is most concerned about would have been 23 available. Accordingly, the Court disagrees that the missing Skype messages could have been 24 restored by seeking discovery through Microsoft. 25 Based on the record, the Court cannot find that there was no prejudice to Resolute. “For a 26 finding of prejudice under Rule 37(e)(1), the Court has discretion to determine whether the loss of 27 the information is prejudicial; neither party carries a burden of proving or disproving prejudice.” 1 messages would have included those between Defendant Brindis and the other named Defendants, 2 non-custodian employees, and third-parties during a critical period, namely between the date of 3 the Quebec minister’s statement regarding the Montagnes Blanches map and the first Challenged 4 Statement. While Greenpeace may argue that no “smoking gun” messages existed at this time, 5 Resolute had a right to review the Skype messages from this period and to understand 6 Greenpeace’s rationale and thought process in issuing the Challenged Statements. (See 7 Greenpeace Opp’n at 20.) Thus, Resolute was prejudiced by this loss. 8 That said, the Court does not find that terminating sanctions or an adverse jury instruction 9 are warranted, particularly given the limited scope of the Court’s finding of spoliation -- namely, 10 any messages lost by Defendant Brindis’s failure to turn off the auto-delete function that were not 11 otherwise turned over through the production of other custodians or Greenpeace Canada. 12 Moreover, there is no evidence Defendant Brindis intentionally spoliated these Skype messages. 13 Accordingly, the Court RECOMMENDS a jury instruction of a short factual statement regarding 14 the spoliation of this evidence. The statement should inform the jury that Defendant Brindis had a 15 duty to preserve all Skype messages, but that despite this duty, certain Skype messages were lost 16 during the period that Defendant Brindis failed to turn off the auto-delete function on his Skype 17 account. Compare with Porter, 2018 U.S. Dist. LEXIS 151349, at *12-13 (denying the request for 18 an adverse jury instruction where the defendant failed to preserve a piece of central evidence but 19 there was no showing of intentional malfeasance, and instead ordering that “the jury may hear a 20 short factual statement at trial regarding the spoliation of this evidence”). The Court also 21 ORDERS Greenpeace to pay Plaintiff’s attorney’s fees for the time spent meeting and conferring 22 on Defendant Brindis’s failure to turn off the auto-delete function, as well as 10% of the time 23 spent on the instant motion for sanctions. 24 B. Greenpeace Motion for Sanctions 25 i. Damages Interrogatories 26 First, Greenpeace seeks sanctions under Rule 37(b) for failure to comply with the Court’s 27 January 20, 2021 order. (Greenpeace Mot. for Sanctions at 15.) The Court finds that Resolute 1 Here, the Court ordered Resolute to identify all material facts supporting its damages, 2 substantiate its claims that it lost market share, and to identify each asset that diminished in value 3 due to Greenpeace’s conduct. (Discovery Order at 3-4.) In its February 2021 responses, Resolute 4 identified three categories of damages (lost profits, mitigation costs, and diversion of employee 5 resources) in response to Interrogatory No. 7, identified documents reflecting Resolute’s market 6 share in regard to Interrogatory No. 13, and various categories of diminished assets. (Feb. 20, 7 2021 Interrogatory Resp.) In April 2022, however, Resolute added significant new information 8 that should have been disclosed before. For example, with respect to Interrogatory No. 7, 9 Resolute identified additional categories of damages such as lost opportunities from decreases in 10 paper demand, the offlining of paper machines, and the decision not to pursue strategic 11 acquisitions; impaired investments in certain mills; and restrictions on debt capacity and sales of 12 shares, resulting in the decision not to take on additional debt to finance capital projects or other 13 investments. (Apr. 19, 2022 Interrogatory Resp.) 14 Resolute argues that “the majority of information that was set forth in the April 2022 15 responses were previously disclosed, and the limited new information is merely additional 16 examples of the categories of damages (lost profits, lost opportunities, and loss of market share) 17 that were previously identified.” (Resolute Opp’n at 22.) Contrary to Resolute’s assertions, 18 however, these were not “merely” additional examples. These are new categories of damages that 19 were not disclosed in the February 10, 2021 responses; the need to offline paper machines, the 20 impairment of investments in certain mills, and the inability to obtain financing or sell stock are 21 simply not examples of lost profits from changes in customer relationships, mitigation costs from 22 addressing customer inquiries or hiring public relations and law firms, or diversion of employee 23 resources to respond to customer inquiries about the Challenged Statements.5 A reasonable person 24 5 To the extent Resolute also points to its August 12, 2020 response to Interrogatory No. 10, the 25 Court also finds that this response would not have put a reasonable person on notice of Resolute’s newly claimed damages. (Resolute Opp’n at 22.) Interrogatory No. 10 requires Resolute to 26 identify all facts and communications relating to its claim that business transactions Resolute had an interest in were harmed. (Second Tabaksblat Decl., Exh. 23 (Aug. 12, 2020 Interrogatory 27 Resp.) at 12.) In its response, Resolute identifies costs to rebut the Challenged Statements, 1 would not view an inability to obtain financing as an “example” of lost profits, mitigation costs, or 2 diversion of employee resources. The Court ordered Resolute to disclose all material facts 3 supporting its damages in January 2021, yet Resolute did not identify these significant categories 4 of damages -- including allegedly $300 million in impaired investments -- until April 2022, a few 5 weeks before the fact discovery cut off. This is not only a violation of the Court’s discovery 6 order, but an abuse of the discovery process. 7 In the alternative, Resolute contends that it was simply supplementing its discovery 8 responses. (Resolute Opp’n at 23.) It is certainly true that Rule 26(e) requires that a party 9 supplement or correct its responses, but Rule 26(e) also requires that the supplementation occur 10 “in a timely manner.” Fed. R. Civ. P. 26(e) (emphasis added). It certainly does not “create a 11 loophole through which a party who . . . .wishes to revise her disclosures in light of her opponent’s 12 challenges to the analysis and conclusions therein, can add to them to her advantage after the 13 court’s deadline for doing so has passed. Rather, ‘supplementation under the Rules means 14 correcting inaccuracies, or filling the interstices of an incomplete report based on information that 15 was not available at the time of the initial disclosure.’” Luke v. Family Care & Urgent Med. 16 Clinics, 323 Fed. Appx. 496, 500 (9th Cir. 2009) (quoting Keener v. United States, 181 F.R.D. 17 639, 640 (D. Mont. 1998)). While Resolute argues that it provided its revised interrogatory 18 responses after document production and depositions, Resolute fails to explain why document 19 production or the depositions were necessary when the damages concern information in Resolute’s 20 own possession. None of this was new information; rather, the offlining of the Calhoun paper 21 machines occurred in the fall of 2017, the projected EBITDA for the Alma, Kenogami, Dolbeau, 22 and St. Felicien mills was for 2015, and the inability to obtain financing included a 2017 incident 23 with Bank of America. Moreover, this failure to provide damages-related information appears to 24 be an ongoing pattern; indeed, in September 2022, Resolute again attempted to extend deadlines in 25 order to produce “several hundred documents” related to damages. (Dkt. No. 475 at 2-3.) In 26 denying Resolute’s motion, the presiding judge noted that Resolute’s description of the documents 27 1 “suggests these documents should have been produced during fact discovery.” (Dkt. No. 478 at 2 2.) 3 Finally, at the hearing, Resolute argued that there was no prejudice because the documents 4 had been provided to Greenpeace, such as documents regarding the mills. This, however, would 5 require Greenpeace to review tens of thousands of documents and speculate as to what Resolute’s 6 damages theories are. This is not the law. Resolute was required to disclose its damages theories 7 in response to Greenpeace’s interrogatories, per the Court’s January 2021 order. It cannot simply 8 rely on unspecified documents productions to satisfy this obligation. Thus, the Court concludes 9 that Resolute’s actions were not substantially justified. 10 While Greenpeace requests terminating sanctions, the Court finds that evidentiary 11 sanctions are adequate to penalize Resolute for its misconduct. Accordingly, the Court 12 RECOMMENDS evidentiary sanctions; any damages theories first disclosed in the April 2022 13 interrogatory responses, as well as any supporting evidence, should be excluded. Additionally, 14 having found that Resolute violated the Court’s discovery order, the Court ORDERS Resolute to 15 pay Greenpeace’s attorney’s fees caused by the failure. As discussed above, Resolute failed to 16 timely update its interrogatory responses without a reasonable explanation. Resolute’s behavior is 17 not in good faith. Accordingly, Resolute shall be required to pay attorney’s fees required to 18 contact Resolute to clarify the bases for their alleged damages. The Court will also award certain 19 attorney’s fees incurred in bringing the instant motion for sanctions, as discussed in the 20 conclusion. 21 ii. Spoliation 22 Next, Greenpeace seeks sanctions under Rule 37(e) for spoliation. (Greenpeace Mot. for 23 Sanctions at 20.) Greenpeace asserts that Resolute committed spoliation in a number of ways; the 24 Court will discuss each alleged act and whether it demonstrates spoliation that warrants sanctions. 25 a. Litigation Hold 26 First, Greenpeace argues that Resolute failed to implement a litigation hold in this case, 27 instead relying on the Resolute Litigation Hold issued in 2014 pertaining to the Greenpeace 1 The Court finds that Greenpeace has not demonstrated that the failure to implement a 2 litigation hold specific to this case resulted in the failure to preserve ESI. While Resolute did not 3 issue a litigation hold specific to this case, it appears that custodians in this case understood the 4 Resolute Litigation Hold to extend to records making any reference to Greenpeace, not simply to 5 records related to the Greenpeace Canada Action. (See Romeo Depo. at 105:1-2, Goulding Depo. 6 at 329:22-24.) Resolute also circulated questionnaires that referred to the Montagnes Blanches 7 allegations, backed up its e-mail account data, and gave additional storage to certain custodians to 8 ensure preservation. (Papps Decl. ¶¶ 6, 12, 13.) Thus, while the Court finds below that Resolute 9 failed to preserve or produce certain categories of documents, it is not apparent to the Court that 10 ESI was lost as a result of the litigation hold, or that Resolute failed to take reasonable steps to 11 preserve ESI. 12 b. Texts 13 The Court finds that Greenpeace has demonstrated that Resolute failed to search and 14 permitted the destruction of text messages. Mr. Goulding testified that he used texts for work, and 15 would use it to send “short messages that have some urgency for you to issue the text,” but that he 16 only understood the Resolute Litigation Hold to pertain to e-mails. Mr. Goulding also stated that 17 he never checked to ensure that texts were being preserved, and was never asked to provide any 18 text messages. (Goulding Depo. at 326:11-327:7, 327:18-21, 330:7-331:7.) Mr. Romeo testified 19 that he texted with other employees and customers, but that the texts were not preserved and he 20 had no way of going back to look at his texts. (Romeo Depo. at 107:16-108:11; 109:13-8.) 21 Additionally, Resolute produced no texts, and apparently conducted no search of any text 22 accounts. 23 Resolute argues that the text messages did not include relevant information, pointing to 24 Mr. Romeo’s testimony that he did not believe he texted anything relevant to the litigation to other 25 employees, and that he would use texts to set up meetings with customers or let them know he was 26 on his way. (Resolute Opp’n at 18; Romeo Depo. at 108:12-19, 109:1-6, 109:14-22.) Mr. 27 Goulding, however, testified that he used texts to send short messages with “some urgency,” 1 testimony in which Mr. Romeo acknowledged an e-mail in which Mr. Goulding noted that he had 2 texted with Mr. Romeo on the day they attended the 2017 Book Expo. (Greenpeace Reply at 12, 3 Dkt. No. 471.) Resolute has alleged that Defendants Moas, Skar, and Brindis were distributing the 4 challenged “Clearcutting Free Speech” report at that 2017 Book Expo. (FAC ¶ 311.) Moreover, it 5 is unclear how Resolute could unilaterally determine that the text messages contained no relevant 6 information when they never searched them. Resolute’s failure to take any reasonable steps to 7 produce or preserve the texts has deprived Greenpeace of communications between employees and 8 with customers, with no ability to determine if they were, in fact, non-substantive. Moreover, 9 unlike above where Greenpeace noted that Resolute could search for the missing Skype messages 10 by subpoenaing Microsoft, Resolute does not suggest that there are any alternative means to 11 search for the text messages, including those that have been destroyed. 12 c. Personal E-Mail Accounts 13 The Court finds that Greenpeace has not demonstrated that ESI from personal e-mail 14 accounts was lost, such that Greenpeace suffered any prejudice. Carolyn Pinto testified that when 15 she had technical issues or wanted to work on something on her own time or after work, it was 16 possible she would send things between her personal and work e-mail addresses. (Pinto Depo. at 17 88:23-89:3, Dkt. No. 459-17.) She also testified, however, that any e-mail in her personal e-mail 18 account that related to Greenpeace would have originated from her work e-mail. (Pinto Depo. at 19 140:17-23.) Greenpeace argues that Resolute should have been required to search Ms. Pinto’s 20 personal e-mail, but there is nothing in the record to suggest that any e-mails sent to or from Ms. 21 Pinto’s personal e-mail would have been produced as part of the search of her work e-mail. 22 (Greenpeace Reply at 13.) Resolute further states that it has produced e-mails that included Ms. 23 Pinto’s personal e-mail address. (Tabaksblat Decl., Exh. 7.) 24 Greenpeace also points to testimony by Francois Dumoulin, in which he acknowledged an 25 e-mail that had been sent between his work and personal e-mail address. (Dumoulin Depo. at 26 175:2-6, 193:6-10 Dkt. No. 459-24.) Mr. Dumoulin also testified that he very rarely used his 27 personal e-mail address at all, and would send things from his work e-mail address “most of the 1 from Mr. Dumoulin’s personal e-mail would not already have been included in the production 2 from his work e-mails. Thus, Greenpeace has failed to demonstrate that ESI was lost or 3 unavailable from an alternate source. 4 d. Local Documents on Personal Devices 5 The Court finds that Greenpeace has not demonstrated that ESI in the form of local 6 documents on personal devices was lost. While Ms. Pinto testified that she would edit documents 7 on her personal computer, she further stated that if she made changes to a document on her 8 personal computer, she would have sent it back to her work e-mail so that she would have 9 everything in the same place. (Pinto Depo. at 141:20-143:19.) Any such documents would 10 therefore have been produced through Ms. Pinto’s e-mails or documents saved on her work 11 computer. Likewise, Greenpeace relies on Ms. Pinto’s testimony that she used her personal 12 computer after becoming a consultant, but Ms. Pinto made clear that she logged in using a VPN to 13 a remote or virtual desktop. (Pinto Depo. at 246:21-25.) Thus, as Resolute points out, any 14 materials saved on that remote desktop would be on Resolute’s servers, not on Ms. Pinto’s 15 personal computer. (Tabaksblat Decl., Exh. 7 at 2.) 16 Greenpeace further points to Mr. Goulding’s testimony that no one searched his personal 17 computer, but does not identify any testimony that he actually used his personal computer for 18 work purposes. (Goulding Depo. at 405:21-406:5.) It is therefore unclear any evidence existed on 19 Mr. Goulding’s personal devices. 20 e. Hard Copies of Documents 21 As an initial matter, the Court notes that hard copies of documents would not warrant 22 sanctions under Rule 37(e) because it is not ESI. The Court, however, does observe that it appears 23 Resolute failed to search and permitted the destruction of hard copies. Indeed, Mr. Romeo 24 testified that he took handwritten notes after client meetings, but was never asked to produce them. 25 (Romeo Depo. at 99:23-100:8.) He also stated that he did not know if he would have been able to 26 produce them anyway because he did not hold onto them for long. (Romeo Depo. at 100:10-11.) 27 f. Seth Kursman E-mails and Custodial Documents 1 documents from Mr. Kursman. Mr. Kursman, who is the Vice President of Communications, 2 Sustainability & Government Affairs, testified that he sent “tens of thousands” of e-mails, or been 3 in the loop on them. (Kursman Depo. at 147:15-16.) Mr. Kursman further testified that there is 4 “hardly a day that goes by” where he is not sending e-mails or working on documents. (Kursman 5 Depo. at 230:24-231:2.) Yet Greenpeace contends that Resolute initially produced only 1,050 6 documents from Mr. Kursman, despite Mr. Kursman being one of the original custodians searched 7 by Resolute, and produced no documents during the relevant time periods surrounding the 8 Challenged Statements. (Second Koonce Decl. ¶ 44.) A later production from the “Archive” 9 included 776 documents from 2015-2017, which was half the size of Ms. Pinto’s production 10 despite Ms. Pinto being one of Mr. Kursman’s reportees and being on parental leave for twelve 11 months during that period. (Second Koonce Decl., Exh. 22.) Indeed, when Greenpeace asked Mr. 12 Kursman about this production, he himself stated that it did not make sense and hoped Greenpeace 13 would address it with Resolute. (Kursman Depo. at 230:16-231:2.) 14 Resolute contends that of its document production, Mr. Kursman was the custodian of 15 more than 3,700 documents. (Blair Decl. ¶ 20.) This amount seems concerningly small given Mr. 16 Kursman’s own testimony that he sent “tens of thousands” of e-mails and either sent or worked on 17 documents daily. Moreover, Mr. Kursman was one of the original custodians searched by 18 Resolute and chosen because, as the supervisor of the department, he would have received a copy 19 of all substantive communications. (Resolute Opp’n at 6.) Thus, based on Resolute’s own 20 assertions, it would seem reasonable that Mr. Kursman would have significantly more documents, 21 as he would have possessed his own e-mails as well as a copy of all substantive communications 22 from his department. Given this significant disparity, the Court finds that spoliation occurred, and 23 that there is no explanation for the loss or failure to produce. Moreover, given Mr. Kursman’s 24 importance in this case and the sheer volume of documents at issue, the Court finds that this loss is 25 prejudicial. 26 g. Kevin Goulding Documents 27 The Court finds that Greenpeace has not demonstrated that Resolute lost or failed to 1 relatively low number of documents produced by Mr. Goulding despite being the direct supervisor 2 of the salespeople who interacted with the book publishing customers, it is unclear from the record 3 how large his production should have been. (Second Koonce Decl., Exh. 22.) It appears Resolute 4 found that Mr. Goulding was the custodian or duplicate custodian of more than 1,600 documents, 5 and the custodian or sender/recipient of 216 documents between December 2016 and May 2017. 6 (Blair Decl. ¶ 19.) Without more information, however, the Court cannot determine if this is 7 inexplicably low or not. 8 h. E-mail Blasts 9 The Court finds that Greenpeace has demonstrated that Resolute lost or failed to produce e- 10 mail blasts. These e-mail blasts were e-mails sent to a mailing group, usually to send positive 11 news or anything that was noteworthy and worth sharing. (Pinto Depo. at 187:10-23.) 12 Greenpeace states that it received only a few blasts from Resolute, although it received such blasts 13 from third-parties. (Second Koonce Decl., Exh. 22.) As an example, Greenpeace produces a blast 14 ostensibly sent from Mr. Kursman to HarperCollins Publishers, which specifically discusses a 15 podcast that Mr. Kursman participated in to discuss Resolute’s “decision to hold Greenpeace 16 accountable for their actions.” (Second Koonce Decl., Exh. 24.) Additionally, almost no drafts or 17 e-mails were produced despite Ms. Pinto testifying that she drafted the blasts and had them 18 reviewed by as many people as who were responsible, as well as Nathalie Guilbault and Mr. 19 Kursman. (Pinto Depo. at 188:5-14.) 20 In response, Resolute merely states that the blasts are not missing, but that “they were 21 simply sent from e-mail accounts that were not custodians in this action.” (Tabaksblat Decl., Exh. 22 7.) At the hearing, Resolute further clarified that the e-mail blasts were sent by a third-party. 23 While this does not explain why drafts of the e-mail blasts were not produced, it also appears that 24 the parties did not meet and confer on this matter. Thus, the Court is not inclined to find 25 spoliation on a matter raised for the first time in a motion for sanctions. 26 i. Specific Documents Found in Third-Party Productions 27 The Court finds that Greenpeace has not demonstrated that Resolute lost or failed to 1 produced by third-parties and not Resolute, it does not argue that these documents were lost by 2 Resolute. Rather, it argues that this “underscore[s] how limited and haphazard Plaintiffs’ apparent 3 search was.” (Greenpeace Reply at 15.) Resolute, in turn, argues that the exemplar documents 4 were either not responsive or were inadvertently not produced. (Resolute Opp’n at 20.) It is not 5 clear from the record that the failure to produce these eleven documents demonstrates the 6 spoliation of ESI, even if it may demonstrate a “haphazard” search. 7 j. Disaggregated Document Drafts 8 The Court finds that Greenpeace has not demonstrated that Resolute lost or failed to 9 produce e-mails including document drafts. Greenpeace argues that there are drafts of documents 10 that were clearly passed among employees, but no e-mails showing the exchange of the drafts. 11 (Second Koonce Decl., Exh. 22 at 3.) Resolute, in turn, states that those drafts were likely stored 12 in a shared drive and then produced in the format in which it was held. (Tabaksblat Decl., Exh. 7.) 13 Thus, it is not apparent that e-mails including these drafts existed. 14 k. Missing Metadata 15 Finally, the Court finds that Greenpeace has not demonstrated that Resolute lost or failed 16 to produce metadata. While Resolute admits that 700 documents were produced without 17 metadata, Resolute only states that this is “because the documents were hard copy documents or 18 such metadata does not exist.” While this fails to explain why documents that were not hard 19 copies lacked metadata to begin with, it does not demonstrate Resolute destroyed the metadata. 20 Rather, as Greenpeace complains, it is possible those documents lacking metadata “were simply 21 copied from Plaintiffs’ production in the Canadian litigation.” (Greenpeace Reply at 14.) This 22 neither demonstrates destruction of metadata, nor does Greenpeace explain why the lack of 23 metadata is prejudicial. 24 l. Conclusion 25 As discussed above, the Court finds that Resolute has committed spoliation of ESI as to: 26 (1) text messages and (2) Mr. Kursman’s e-mails and custodial documents. Accordingly, the 27 Court RECOMMENDS a jury instruction of a short factual statement regarding the spoliation of 1 produce this evidence, but that despite this duty, Resolute failed to do so. The Court also 2 ORDERS Resolute to pay all attorney’s fees Greenpeace incurred to address the production (or 3 failure to produce) these two categories of documents, e.g., meeting and conferring, as well as 4 other efforts taken to search for these documents. The Court will also award certain attorney’s 5 fees incurred in bringing the instant motion for sanctions, as discussed in the conclusion. 6 iii. Abuse of Discovery Process 7 Finally, Greenpeace seeks monetary sanctions based on Resolute’s “belated and ad hoc” 8 production, including the production of more than over 14,000 documents between October 2021 9 and February 2022, nearly a year after Resolute “substantially completed” its production. (See 10 Greenpeace Mot. for Sanctions at 24; Second Koonce Decl. ¶ 64.) Specifically, Greenpeace 11 requests that the Court exercise its inherent powers to impose “monetary sanctions in the form of 12 attorney’s fees against a party or counsel who acts ‘in bad faith, vexatiously, wantonly, or for 13 oppressive reasons.’” (Greenpeace Mot. for Sanctions at 24; Toppan Photomasks, Inc. v. Park, 14 No. 13-cv-03323-MMC (JCS), 2014 U.S. Dist. LEXIS 74063, at *35 (N.D. Cal. May 29, 2014) 15 (quoting Leon v. IDX Sys. Corp., 464 F.3d 951, 961 (9th Cir. 2006)). “Before awarding such 16 sanctions, the court must make an express finding that the sanctioned party’s behavior constituted 17 or was tantamount to bad faith. A party demonstrates bad faith by delaying or disrupting the 18 litigation . . . .” Leon, 464 F.3d at 961 (internal quotation omitted). “[T]he amount of monetary 19 sanctions must be reasonable.” Id. (internal quotation omitted). 20 The Court finds that Resolute’s discovery misconduct was in bad faith. In opposition, 21 Resolute argues that the delayed production was due to Greenpeace’s failure to respond to 22 Resolute’s inquiries as to search metrics. (Resolute Opp’n at 16.) Resolute, however, cites no 23 authority that Greenpeace was required to assist in crafting Resolute’s search metrics, such that the 24 failure to do so abrogated Resolute’s obligation to provide all responsive documents. See U.S. 25 Legal Support, Inc. v. Hofioni, No. 2:13-cv-01770-MCE-AC, 2015 U.S. Dist. LEXIS 137984, at 26 *14 (E.D. Cal. Oct. 7, 2015) (“Plaintiff has an obligation to produce all responsive documents in 27 its possession, custody, or control within thirty (30) days of the request for production.”). 1 Archives, namely due to a new document management team when Lotus Notes was transitioned to 2 Outlook. (Resolute Opp’n at 20; Papps Decl. ¶ 11.) Resolute, however, also states that these 3 Archives were backed up annually. (Resolute Opp’n at 5; Papps Decl. ¶ 17.) Thus, it would 4 appear Resolute was fully aware of the Archives given its great pains to maintain them; the 5 suggestion that Resolute then overlooked them rings hollow. 6 Resolute also argues that many of the documents from its Archives were duplicates of 7 previously produced documents, but that does not mean that the entire later production was from 8 the Archives or duplicates. (Resolute Opp’n at 20-21.) The duplicates from the Archives also 9 does not explain the sheer number of documents that were produced nearly a year after Resolute 10 “substantially completed” its production; indeed, it appears Resolute disclosed to Greenpeace that 11 the Archives included 4,000 documents. (Second Tabaksblat Decl. ¶ 21; Second Koonce Decl. ¶ 12 43.) Yet the production between October 2021 and February 2022 consisted of over 14,000 13 documents, in comparison to its prior production of 10,564 documents. At the hearing, Resolute 14 admitted that not all of these documents were duplicates. Thus, Greenpeace was still required to 15 go through these later productions to find the documents that were not duplicates. While a party 16 may supplement its responses, the supplementation is “not . . . improper as long as [the] initial 17 search was done diligently and in good faith.” Id. at *16; see also id. (“While the court is aware 18 that discovery can, at times, prove a burdensome and lengthy enterprise, that fact does not justify 19 what would effectively be a period of endless discovery.”). Here, Resolute’s attempts to shift 20 blame to Greenpeace for failing to provide feedback as to search metrics or custodians, or to 21 suggest its late production due to an oversight with the Archives, does not justify the late 22 production. Furthermore, as noted above, these late productions appear to be a pattern, the most 23 recent example being Resolute’s September 2022 request to extend deadlines in order to produce 24 “several hundred documents” related to damages for the first time. 25 Moreover, this delayed production was not without consequence. Greenpeace states that 26 Resolute would routinely “produce large tranches of a deponent’s custodial documents on the eve 27 of depositions, which required Defendants to last-minute reschedule the depositions or scramble to 1 Significantly, Resolute does not dispute this behavior. Rather, Resolute argues that there was no 2 prejudice because it agreed to adjourn the depositions and continue the existing discovery 3 deadlines. (Resolute Opp’n at 17; Second Tabaksblat Decl. ¶ 22.) Yet such adjournments and 4 continuances of discovery deadlines would not have been required if Resolute had not delayed in 5 producing the custodial documents of the deponent. Indeed, the fact that this behavior happened 6 repeatedly before a custodian’s deposition further demonstrates bad faith and improper 7 gamesmanship. 8 Accordingly, the Court finds that the imposition of sanctions is warranted. Here, the 9 primary prejudice identified by Greenpeace is the rescheduling of depositions and review of late- 10 produced documents. Therefore, the Court ORDERS Resolute to pay attorney’s fees required to 11 reschedule depositions and review of newly produced documents in preparation for the 12 rescheduled depositions. The Court will also award certain attorney’s fees incurred in bringing the 13 instant motion for sanctions, as discussed below. 14 IV. CONCLUSION 15 For the reasons stated above, the Court GRANTS IN PART AND DENIES IN PART 16 Resolute’s motion for sanctions, and RECOMMENDS a jury instruction of a short factual 17 statement regarding the spoliation of Skype messages lost by Defendant Brindis’s failure to turn 18 off the auto-delete function. The Court also awards Resolute attorney’s fees, namely the 19 attorney’s fees incurred from meeting and conferring on Defendant Brindis’s failure to turn off the 20 auto-delete function, as well as 10% of the time spent on Resolute’s motion for sanctions. 21 The Court GRANTS IN PART AND DENIES IN PART Greenpeace’s motion for 22 sanctions. The Court RECOMMENDS evidentiary sanctions, specifically the exclusion of any 23 damages theories first disclosed in the April 2022 interrogatory responses and any supporting 24 evidence. The Court also RECOMMENDS a jury instruction of a short factual statement 25 regarding Resolute’s failure to preserve and produce text message and Mr. Kursman’s e-mails and 26 custodial documents. 27 As to attorney’s fees, the Court awards Greenpeace attorney’s fees, specifically the 1 damages, (2) addressing the two categories of spoliated documents, e.g., meeting and conferring 2 || with Resolute and efforts undertaken to locate the documents, and (3) rescheduling depositions 3 and reviewing newly produced documents in preparation for the rescheduled depositions. 4 || Additionally, taking into account Greenpeace’s limited success on the spoliation issue, the Court 5 awards 80% of the time spent on Greenpeace’s motion for sanctions. 6 The parties shall meet and confer as to the attorney’s fees amounts. If the parties are 7 unable to come to an agreement on the amount, the parties shall file their motions for attorney’s 8 fees by December 1, 2022, absent a stipulation to extend the deadlines. 9 IT IS SO ORDERED. 10 Dated: November 2, 2022 . M Kane A. dada 2 United States Magistrate Judge

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