Experience Hendrix, L.L.C., a Washington Limited Liability Company, and, Authentic Hendric, L.L.C., a Washington Limited Liability Company,Plaintiffs,v.Andrew Pitsicalis, an individual; Leon Hendrix, an individual; Purple Haze Properties, L.L.C., a Nevada Limited Liability Company; Rockin Artwork, Inc., a Nevada Limited Liability Company; Carmen Cottone a/k/a Carmen Thomas Andolina a/k/a Carm Cottone, an individual d/b/a Partners and Players, a New York Company and d/b/a Dynasty Gourmet Foods, a New York Company; Firefly Brand Management, L.L.C., a California Limited Liability Company; Firefly Consumer Products, Inc., a California Corporation; Cynthia Modders, an individual; Grassroots California d/b/a Grassroots California, a Colorado Limited Liability Company; Kurt S. Adler, a New York Corporation; Freeze, a division of Central Mills, Inc.; and Green Cures & Botanical Distribution, Inc.,Defendants
OPINION AND ORDER Plaintiffs Experience Hendrix L.L.C. and Authentic Hendrix, L.L.C. are the successors-in-interest to the estate of legendary rock guitarist Jimi Hendrix. They bring this action against Andrew Pitsicalis, Leon Hendrix, Rockin Artwork, Purple Haze Properties (“PHP”), and associated individuals and entities. Plaintiffs contend that defendants have manufactured, licensed, and advertised products that depict Jimi Hendrix and bear his name, and in so doing have unlawfully used and exploited Jimi Hendrix-related trademarks and copyrights owned by plaintiffs, in violation of the Lanham Act, 15 U.S.C. §1051, et seq.; the Copyright Act, 17 U.S.C. §§106, 201, 501, and 504; and various state laws. See Dkt. 115 (“Third Am. Compl.”).Among defendants, Andrew Pitsicalis is the president of Rockin Artwork and PHP. Leon Hendrix is Andrew Pitsicalis’ business partner, the owner of PHP, and a managing member of Rockin Artwork. Collectively, the Court refers to these individuals and entities as the “PHP defendants.”Pretrial discovery has been proceeding under this Court’s supervision. As the docket in this matter reflects, the Court has been called upon dismayingly often to act when presented with evidence of the PHP defendants’ persistent non-compliance with basic discovery obligations. Plaintiffs now move this Court to sanction these defendants for (1) spoliation of evidence and, more generally, (2) “consistent, pervasive[,] and relentless discovery abuses by [d]efendants and their counsel, Thomas Osinski.” Dkt. 245. Plaintiffs request, inter alia, a preliminary injunction, an order of attachment, an adverse inference instruction at trial, and terminating sanctions. See Dkts. 237, 244. For the reasons below, the Court grants the motion for an adverse inference instruction and directs the PHP defendants to pay the reasonable fees and costs incurred by plaintiffs in bringing this motion.I. Background as to the Instant Discovery AbusesThe Court has been called on repeatedly to issue orders aimed at assuring the PHP defendants’ compliance with elementary discovery obligations. See, e.g., Dkt. 74 (scheduling telephonic conference to discuss defense’s refusal to produce defendant Carmen Cottone for her scheduled deposition, failure to produce certain financial records and ledgers of the PHP defendants, and misleading representations about whether defendant Andrew Pitsicalis had done business via text messages); Dkt. 78 (directing “defense counsel to conduct a diligent search for, and thereafter produce, all documents responsive to” plaintiffs’ document requests and to produce a “sworn declaration attesting, in detail, to the means by which the search was conducted and whether the search uncovered any additional responsive documents, and if so, which documents”); Dkt. 81 (“January 12 Order”) (directing defense counsel to submit a supplemental detailed declaration explaining the “concrete steps taken, and the dates those steps were taken, to secure the evidence in question”); Dkt. 231 (directing plaintiffs to file letter chronicling outstanding discovery lapses by the PHP defendants). The Court here recaps the background pertinent to the discovery abuses that plaintiffs have most recently alleged on the part of the PHP defendants and that have prompted plaintiffs to file the instant motion for sanctions. These largely consist of the failure to produce, the delayed production, and the spoliation of evidence stored on electronic devices.A. Identification of Non-Produced Devices Containing Relevant FilesIn a January 5, 2018 letter, plaintiffs notified the Court of deficiencies in the PHP defendants’ responses to discovery demands and of the PHP defendants’ failure to produce and possible spoliation of certain electronically stored evidence. Dkt. 80. Plaintiffs requested, inter alia, “leave to make [a] particularized showing and provide clear evidence of multiple other instances of [d]efendants’, and their counsel’s, misrepresentations, withholding of documents and generally engaging in vexatious and oppressive tactics which have prolonged the discovery process.” Id. at 3. In an order issued on January 12, 2018, the Court, in response, authorized plaintiffs to “take discovery into the existence of responsive records that have not been produced, and into the means taken to assure the preservation and production of records.” January 12 Order. On April 20, 2018, the Court reiterated in an order that plaintiffs are “entitled to access documents related to defendants’ document retention and production.” Dkt. 104 at 2.After the Court directed the parties to meet and confer, id. at 3, the parties agreed upon search terms to apply to electronic devices, but they could not agree on the type or number of such devices to be searched. Dkt. 132. Plaintiffs argued that the January 12 Order covered cellphones and tablets. Id. at 2. Plaintiffs further represented that both Andrew Pitsicalis and defense counsel Thomas Osinski, Esq., had made statements indicating that the PHP defendants had multiple computers containing potentially responsive documents. Id. The PHP defendants countered that their cell phones and tablets should be held outside the scope of items subject to search, Dkt. 132 at 3, and that Andrew Pitsicalis owned only one laptop and one iPad, Dkt. 144 at 2.On July 10, 2018, the Court held a hearing to address these disputes. At that hearing, as memorialized in an order issued the following day, the Court directed the PHP defendants to produce forensic images of “every computing device physically located in the office(s) of-or otherwise associated with the business activities of — [the PHP Parties]” by July 16 or, as to certain devices that required a review of potentially privileged material, by July 23. Dkt. 168 (“ July 11 Order”) at 1. The Court held that “computing devices” encompassed not just laptops, but also cellphones and tablets. Id. The Court also required the PHP defendants to “contact every such present or former employee or independent contractor [of theirs] and inquire whether each has retained any records relating to his or her work for the PHP Parties, and if so, obtain such records” and produce them immediately. Id. at 2.B. The PHP Defendants’ Failure to Produce Forensic Images as OrderedOn July 17, 2018, the PHP defendants filed a letter requesting additional time to produce forensic images of responsive computing devices. See Dkt. 170. The PHP defendants explained that they had had difficulty hiring an expert technician who could image the hard drives and that, after they had hired a technician, the technician had mistakenly saved “images containing privileged material and those with none on the same drive.” Id. at 1. Given the time it would take to re-save these images to separate drives, the PHP defendants requested leave to produce all hard drive images, not just ones subject to privilege review, by July 23. Id. The Court granted that request. Dkt. 172. But, given the PHP defendants’ track record of disregarding discovery obligations, the Court imposed a fine of $100 per weekday after July 23 that the PHP defendants failed to produce the hard-drive images. Id.The PHP defendants, however, did not comply with the order to produce forensic images of these devices.1 Instead, the PHP defendants produced only the data visibly resident on those devices. See Dkt. 174, Ex. B (declaration of Doris Little). On August 2, 2018, the Court ordered the PHP defendants to cure their deficient production by August 9, 2018, warning that if the PHP defendants failed to meet that deadline they must “pay plaintiffs $100 per weekday until all images are provided.” Dkt. 178 at 2. In a joint letter filed on August 10, 2018, the PHP defendants “readily admit[ted] the deadline was missed” and stated that they “will not challenge the Courts [sic] imposition of the $100 per day fine.” Dkt. 180 at 7. The PHP defendants later represented that it was not until August 17, 2018, that they finally produced these images, i.e., six business days after the extended deadline. See Dkt. 185 at 7. Accordingly, the Court ordered the PHP defendants to pay $600 in sanctions to the Registry of the Court. See Dkt. 188.Regrettably, the August 17 production also proved non-compliant with the July 11 Order. Plaintiffs notified the Court that, despite the directive that “[t]he forensic imaging shall include previously deleted but currently recoverable files,” July 11 Order at 1, none of the produced images contained deleted files, Dkt. 190 at 6. Moreover, plaintiffs represented, the PHP defendants had withheld the encryption key for one of the imaged drives until August 29, 2018, despite having been alerted by plaintiffs’ counsel to this deficiency on August 20, 2018. Id. In response to these lapses and the PHP defendants’ concomitant failure to produce documents related to Andrew Pitsicalis’ 30(b)(6) deposition, the Court ordered the PHP defendants to pay $4,000 in sanctions to the Registry of the Court by September 13, 2018. See Dkt. 194.The Court separately held that plaintiffs were entitled to compensation for all “billed time fairly traceable to issues arising from defendants’ noncompliance with the [Court's] August 22 order.” Dkt. 194 at 1. On September 19, 2018, after receiving documentation as to plaintiffs’ counsels’ billed time, the Court issued an order directing the PHP defendants to “issue to plaintiffs a check in the amount of $12,787.50″ by September 21, 2018. Dkt. 213 at 2. By September 24, 2018, the PHP defendants still had not remitted payment to plaintiffs. The Court issued another order directing the PHP defendants to send payment to plaintiffs by September 26, 2018. See Dkt. 218. Once again, the Court informed the PHP defendants that they would have to pay $100 in sanctions to the Registry of the Court for each weekday after the deadline that payment remained outstanding. See id.C. The PHP Defendants’ Use of Anti-Forensic SoftwareIn a September 13, 2018 letter, plaintiffs alerted the Court to a separate problem impairing the PHP defendants’ compliance with discovery obligations: The PHP defendants had installed and used anti-forensic software on relevant computers during the pendency of this action. See Dkt. 208.To develop the record as to the PHP defendants’ use of anti-forensic software on these computers, the Court scheduled an evidentiary hearing for October 26, 2018, and directed plaintiffs’ forensic expert, John T. Myers, to submit a declaration by October 15, 2018.2 See Dkt. 213. The Court also directed Andrew Pitsicalis; Osinski; and Nick Schmitt, a web and graphic designer who worked for PHP as an independent contractor, each to submit, by October 19, 2018, a declaration “setting forth with specificity the timing, circumstances, and purpose of any use of anti-forensic software on devices associated with this litigation since March 16, 2017, whether identified in plaintiffs’ expert’s declaration or not.” Id. at 6.During the October 26, 2018 hearing, the Court heard live testimony regarding the PHP defendants’ alleged use of anti-forensic software on, and removal of files from, electronic devices containing documents responsive to the agreed-upon search terms in this lawsuit. The Court heard from five witnesses: (1) Myers, who analyzed the imaged hard drives produced by the PHP defendants; (2) Keenan Milner, the digital forensic image consultant whom the PHP defendants had hired to prepare images of the devices at issue;3 (3) defense counsel Osinski; (4) Andrew Pitsicalis; and (5) Schmitt.The Court first heard testimony from Myers regarding his review of the images of the six computing drives that the PHP defendants produced. These six devices were as follows: (1) Computer 1, which belonged to William Pitscalis, Andrew Pitsicalis’ cousin and CEO of defendant Green Cures & Botanicals, Inc.; (2) Computer 2, which belonged to Andrew Pitsicalis; (3) Computer 3, which belonged to PHP’s web designer Schmitt; (4) iPhone 1, which belonged to defendant Leon Hendrix; (5) iPhone 2, which belonged to Andrew Pitsicalis; and (6) iPad 1, which also belonged to Andrew Pitsicalis. See Dkt. 232 (“Myers Decl.”).Myers, whose testimony the Court deemed credible and persuasive, found that each of the three computers he reviewed contained anti-forensic software. Myers Decl.
