# Cleveland v. The Behemoth

> District Court, S.D. California · August 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10084265

## Case

- **Court:** District Court, S.D. California
- **Decided:** August 20, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10084265

## How later opinions describe it (automated extraction)

- describing the 17 standard as “significantly deferential”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 ROBERT CLEVELAND, an individual, Case No.: 19-cv-0672-GPC-BGS

12 Plaintiff,
ORDER OVERRULING IN PART
13 v. AND SUSTAINING IN PART
PLAINTIFF’S OBJECTIONS TO
14 THE BEHEMOTH, a California
MAGISTRATE JUDGE’S MAY 27,
corporation; and DOES 1 through 10,
15 2021 ORDER
Defendants.
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[ECF No. 44.]
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18 Before the Court is Plaintiff’s Objection to the Magistrate Judge’s May 27, 2021
19 discovery order. (“MJ Order” or “the challenged Order,” ECF No. 42). Pl. Mot., ECF
20 No. 44. On June 25, 2021, Defendant opposed. ECF No. 46. On July 02, 2021, Plaintiff
21 replied. ECF No. 47. Based on the reasoning below, the Court OVERRULES in part and
22 SUSTAINS in part Plaintiff’s objections to the Magistrate Judge’s discovery order. In
23 light of this ruling, the Court VACATES the hearing set for this matter on August 27,
24 2021.
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1 I. BACKGROUND
2 The underlying suit concerns allegations of a hostile work environment, sexual
3 harassment, retaliation, wrongful termination, and related claims arising from Plaintiff’s
4 work for Defendant, a video game company. On December 23, 2020, Defendant made an
5 untimely production of documents (“supplemental production”). MJ Order at 4. The
6 supplemental production included Slack chats (“supplemental Slacks”), photographs,
7 records purportedly relating to Plaintiff’s performance reviews, emails between Mr.
8 Fernandes and Mr. Baez, and a purported YouTube watch list—all of which Plaintiff
9 alleged to be responsive to RFPs. Id. On January 11, 2021, Plaintiff filed a Motion for
10 Evidence Preclusion and Monetary Sanctions for an untimely production of discovery,
11 which Defendant opposed. ECF Nos. 37, 40. On May 28, 2021, the Magistrate Judge
12 issued an Order Denying Plaintiff’s Motion for Sanctions. ECF No. 42.
13 In the challenged Order, Magistrate Judge Skomal first considered the timeliness
14 and responsiveness of Defendant’s supplemental production, including whether
15 Defendant had a duty to supplement and when such a duty arose. Magistrate Judge
16 Skomal found that the Slack messages were responsive to Plaintiff’s RFPs and were not
17 timely produced, and that the YouTube Watch History, photographs identified as trial
18 exhibits not previously produced, two emails from Jay Fernandes to John Baez, and the
19 “One on One Notes” were not timely produced as supplements to initial disclosures. MJ
20 Order at 13. Magistrate Judge Skomal then considered whether these failures to timely
21 disclose fell under an exception to Rule 37(c)(1) allowing the information to be
22 introduced if the parties’ failure to disclose was substantially justified or harmless. MJ
23 Order at 15. As to each portion of the supplemental production at issue, Magistrate Judge
24 Skomal found the untimely production fell under either the substantial justification
25 exception, the harmlessness exception, or both.
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1 II. LEGAL STANDARD
2 Under Federal Rule of Civil Procedure 72(a), aggrieved parties may file objections
3 to a magistrate judge’s rulings on non-dispositive matters within fourteen days. The
4 district court reviews whether the decision is “clearly erroneous or is contrary to law.”
5 Fed. R. Civ. P. 72(a); see also Osband v. Woodford, 290 F.3d 1036, 1041 (9th Cir. 2002).
6 “The ‘clearly erroneous’ standard applies to factual findings and discretionary decisions
7 made in connection with non-dispositive pretrial discovery matters.” FDIC v. Fid. &
8 Deposit Co. of Maryland, 196 F.R.D. 375, 378 (S.D. Cal. 2000) (citations omitted). The
9 “contrary to law” standard “permits independent review of purely legal determinations by
10 the magistrate judge.” Id. at 378 (citations omitted).
11 The magistrate judge’s decision on a nondispositive matter is entitled to great
12 deference. United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir. 2001) (“[T]he
13 magistrate judge acted as the agent of, and not merely an assistant to, the district judge . .
14 . the text of the Magistrates Act suggests that the magistrate judge’s decision in such
15 nondispositive matters is entitled to great deference by the district court”); see McAdam
16 v. State Nat. Ins. Co., 15 F. Supp. 3d 1009, 1013 (S.D. Cal. 2014) (describing the
17 standard as “significantly deferential”). “Under Rule 72, the reviewing district judge may
18 not supplant his or her own judgment in place of the deciding magistrate judge.” La Jolla
19 Spa MD, Inc. v. Avidas Pharmaceuticals, LLC, No. 17-cv-01124, 2019 WL 5088559, at
20 *2 (S.D. Cal. Oct. 10, 2019). Consequently, discretionary orders, such as those granting
21 or denying the imposition of sanctions in a discovery dispute, “will be overturned only if
22 the district court is left with the definite and firm conviction that a mistake has been
23 made.” Ctr. For Biological Diversity v. Fed. Highway Admin., 290 F. Supp. 2d 1175,
24 1199-1200 (S.D. Cal. 2003). To the extent that the district court reviews the challenged
25 order, this Court’s role is therefore not to probe into the aggrieved party’s underlying
26 assertions to root out any possible room for disagreement. Instead, this Court’s function
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1 is to review the challenged Order for clear error, and to intervene if this Court finds
2 Magistrate Judge Skomal’s conclusions are manifestly mistaken.
3 III. DISCUSSION
4 Plaintiff objects to the Magistrate Judge’s Order on two grounds: first, that the
5 Order shifts the burden of proving substantial justification or harmlessness to Plaintiff in
6 contravention of prevailing law, and second, that the Order impermissibly allows
7 Defendant to introduce evidence it will rely on at trial despite Plaintiff’s inability to
8 depose witnesses or scrutinize bases of opinion before trial. Pl. Mot. at 2.
9 A. Burden to Show Substantial Justification or Harmlessness
10 Plaintiff takes issue with the challenged Order’s statement that “Plaintiff does not
11 specify which of the 582 pages is responsive to which RFP,” arguing that through this
12 and similar statements, the challenged Order erroneously shifts the burden of proving
13 substantial justification or harmlessness to Plaintiff. Pl. Mot. at 10. However, Plaintiff has
14 misconstrued the Magistrate Judge’s purpose in addressing responsiveness. The
15 challenged Order’s discussions of responsiveness, and whether Plaintiff has identified
16 which RFPs are at issue, do not relate to the burden of proving substantial justification or
17 harmlessness. They deal instead with the threshold question of whether the production at
18 issue falls under Rule 26’s ambit (“Therefore, the Court must first ascertain which of the
19 documents respond to Plaintiff’s listed RFPs in order to determine whether the alleged
20 belated discovery relates to an incomplete response to that RFP.” MJ Order at 5.) Only
21 after determining whether the production is responsive, and whether it qualifies as a
22 supplement to initial disclosures, does Magistrate Judge Skomal move to a discussion of
23 timeliness and the burden of proving that an exception applies. MJ Order at 11. The
24 challenged Order’s considerations of responsiveness do not impermissibly shift the
25 burden onto Plaintiff, because they address a separate part of the applicable legal
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1 standard—they do not pertain directly to the question of substantial justification or
2 harmlessness.
3 As to that question, Federal Rule of Civil Procedure 26(e) governs supplemental
4 discovery disclosures and responses. Federal Rule of Civil Procedure 37 addresses
5 imposable sanctions related to the same. “If a party fails to provide information or
6 identify a witness as required by 26(a) or (e), the party is not allowed to use that
7 information or witness to supply evidence on a motion, at a hearing, or at trial, unless the
8 failure was substantially justified or harmless.” Fed. R. Civ. P. 37(c)(1); see Yeti by Molly
9 Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). “[T]he burden is on
10 the party facing sanctions to prove harmlessness.” Id. at 1107. The challenged Order cites
11 and applies the correct legal standard as to FRCP Rule 37 sanctions and its exceptions.
12 MJ Order at 15 (“The party trying to avoid Rule 37 sanctions, here Defendant, bears the
13 burden of proving substantial justification or harmlessness.”). The challenged Order
14 looks to the sufficiency of Defendant’s arguments, not Plaintiff’s, in determining
15 substantial justification or harmlessness. See MJ Order at 19 (“As to substantial
16 justification Defendant explains . . . in some detail how the deficiency was identified . .
17 .”). Magistrate Judge Skomal therefore requires Defendants to carry the burden of
18 explanation, in accordance with caselaw. Accordingly, the challenged Order’s citation to,
19 and application of, the relevant legal standard was not erroneous or contrary to law.
20 B. Challenged Order’s Findings
21 Plaintiff next objects that Magistrate Judge Skomal impermissibly allows
22 Defendant to introduce evidence without permitting Plaintiff to depose witnesses or
23 scrutinize bases for opinion. In essence, Plaintiff advances an argument about the
24 correctness of Magistrate Judge Skomal’s findings as to substantial justification and
25 harmlessness, as well as the Magistrate Judge’s opinions as to necessary cure.
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1 Under FRCP 37, the party seeking to avoid sanctions bears the burden of proving
2 either substantial justification or harmless, not both. Fed. R. Civ. P. 37(c)(1). Magistrate
3 Judge Skomal found, after careful and thorough analysis, that each of the portions of the
4 supplemental production fell under one or both exceptions. The Court will further review,
5 by category, the belated production of documents which were not previously produced
6 and which Defendant has identified as a trial exhibit.
7 Supplemental Slack Messages
8 Plaintiff objects to the Magistrate Judge’s finding that the belated production of
9 supplemental Slack messages was substantially justified and harmless. Defendants
10 conceded that the supplemental Slack messages are responsive to Plaintiff’s RFPs. MJ
11 Order at 19. However, Magistrate Judge Skomal concluded that Defendant’s detailed
12 explanation of the flaw in Logikcull’s algorithm constituted substantial justification. Id.
13 Furthermore, the belated production was harmless because Magistrate Judge Skomal was
14 not convinced that there was any basis for differentiating the supplemental Slack
15 materials from Slack messages that had already been produced between Plaintiff and Mr.
16 Banes. Id. Plaintiff argues that “[t]hey are different conversations, which happened on
17 different days, with varying degrees of probative value…” Pl. Mot. at 13. It is of course
18 true that different messages from different days may have different probative value. It is
19 also a very generalized statement. And while it is not Plaintiff’s burden to prove
20 substantial justification or harmlessness in his Motion for Sanctions, it is Plaintiff’s role
21 as the objecting party to convince this Court that Magistrate Judge Skomal committed
22 clear error. See In re Midland Credit Management, Inc., Telephone Consumer Protection
23 Act Litigation, No. 11-md-2286, 2020 WL 6504416, at *5 (S.D. Cal. Nov. 5, 2020)
24 (finding Plaintiff had not carried his burden to show that the Magistrate Judge’s order
25 was clearly erroneous or contrary to law). Plaintiff argues by way of illustration that one
26 of the supplemental Slacks, TRC_007806-007809, relates to Plaintiff and Mr. Banes’
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1 respective interactions with Mr. Stamper, and thus a deposition of Mr. Banes would be a
2 necessary cure. Pl. Mot. at 13. Neither party provided the supplemental Slack messages
3 for this Court’s review. Without the messages themselves, this Court is unable to evaluate
4 whether, and how, TRC_007806-007809 would be different from the others which did
5 not prompt Plaintiff to depose Mr. Banes. While there is a possibility that the message
6 Plaintiff points to has probative value, that does not lead to the inescapable conclusion
7 that Magistrate Judge Skomal committed clear error. In any case, Magistrate Judge
8 Skomal found that both exceptions under Fed. R. Civ. P. 37(c)(1) applied to the
9 supplemental Slack messages, where only one exception would be required to excuse
10 their belated production. Even if this Court were to find that the late production of
11 TRC_007806-007809 (and other supplemental Slack messages) were not harmless,
12 Defendant would still be excused under the substantial justification exception. Therefore,
13 this Court finds no clear error in Magistrate Judge Skomal’s conclusions regarding the
14 supplemental Slack messages.
15 YouTube Watch History
16 The bulk of the belated production consists of the Plaintiff’s YouTube Watch
17 History. MJ Order at 4. The challenged Order found that the Watch History was not
18 responsive to Plaintiff’s RFPs, but qualified as a supplement to initial disclosures. Id. at
19 21. Magistrate Judge Skomal considered Defendant’s explanation for why the YouTube
20 Watch History was not found earlier unavailing as substantial justification since Mr. Baez
21 could have simply checked all folders. Id. The Court agrees that there is no substantial
22 justification for Defendant’s failure to more thoroughly check its folders and discover this
23 part of the Google Takeout file.
24 Magistrate Judge Skomal next concluded that while there was not substantial
25 justification, Defendant had shown harmlessness because Plaintiff himself is in the best
26 position to evaluate and explain his own Watch History. Id. at 22. Plaintiff argues that
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1 prejudice exists because he is not able to ascertain “custody of the purported email
2 account and device from which the YouTube data was purportedly generated, or who has
3 had access to the purported email account and device at all relevant times.” Pl. Mot. at
4 14. The challenged Order notes that the Baez Declaration sufficiently “details how the
5 account [including the Watch History] was preserved, how and when it was searched,
6 what was found, when it was found, and when it was produced.” MJ Order at 22. Plaintiff
7 objects that this is insufficient where Defendant plans to present this viewing history,
8 including links to hundreds of YouTube videos, at trial. Pl. Reply at 5.
9 The YouTube Watch History is a significant portion of the supplemental
10 production that, unlike the supplemental Slack messages and two emails from Jay
11 Fernandes to John Baez, is not similar to previously produced documents in content or
12 form. While the Baez Declaration describes the creation, search, and production of the
13 Google Takeout file as a whole, it does not specifically address the issues Plaintiff has
14 raised: the circumstances of the creation, custody, and extraction of the YouTube Watch
15 History’s contents in particular. ECF No. 40-1 at 4. The Baez Declaration is therefore
16 insufficient to address Plaintiff’s concerns. The Court is also not convinced that the
17 belated production of the Watch History should be considered harmless simply because
18 Plaintiff can opine on his own YouTube history. As Plaintiff points out, it has been more
19 than three years since Plaintiff worked for Defendant and had access to the computer on
20 which this Watch History was purportedly generated. Pl. Reply at 4. The possibility of
21 prejudice and surprise at trial still exists, even where a party may have had some insight
22 into or control over the document in question. This is especially true where, as here,
23 Plaintiff has not had access to or control over the purported YouTube Watch History
24 since leaving Defendant’s employ, or at the very least since Defendant exported
25 Plaintiff’s Google Suite data into the Takeout file in April 2019. ECF No. 40-1 at 4.
26 Since Defendant plans to rely on the Watch History at trial, Plaintiff should be afforded
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1 the opportunity to scrutinize the document’s provenance. See Chisolm v. 7-Eleven, Inc.,
2 383 F. Supp. 3d 1032, 1045 (S.D.Cal. 2019), aff’d 814 F. Appx. 194 (9th Cir. 2020).
3 Accordingly, the Court finds that it was error for Magistrate Judge Skomal to designate
4 the belated production of the YouTube Watch History as harmless. The Court
5 SUSTAINS Plaintiff’s Objection to the extent that Plaintiff shall be allowed to reopen
6 discovery for the limited purpose of propounding discovery addressing the origin,
7 creation, custody, and extraction of the YouTube Watch History only. The parties shall
8 contact the Magistrate Judge to reset deadlines.
9 Two Emails from Jay Fernandes to John Baez
10 While Magistrate Judge Skomal found that the belated production of the two
11 emails was not substantially justified, the challenged Order concluded that Defendant
12 had established harmlessness because the emails were “no more than minimally
13 prejudicial and no cure is required.” MJ Order at 24. Plaintiff argues that prejudice exists
14 because Plaintiff should have had the opportunity to depose relevant witnesses on all
15 communications relating to work performance. Pl. Reply (ECF No. 47) at 8. This Court
16 has reviewed the emails at issue and finds no basis for disagreement with Magistrate
17 Judge Skomal’s conclusion that “references to Plaintiff’s work hours would not require a
18 deposition and Mr. Baez’s impressions [of Plaintiff’s work] have already been
19 addressed.” MJ Order at 24. Without further explanation from Plaintiff as to why more
20 cure would be needed regarding these two emails, the Court finds no error in Magistrate
21 Judge Skomal’s conclusion.
22 Miscellaneous Photographs
23 Magistrate Judge Skomal found that the photographs of Plaintiff and co-workers at
24 work (TRC_008264-8265, “Miscellaneous Photographs”) were unresponsive to
25 Plaintiff’s RFPs but qualified as supplements to initial disclosures. MJ Order at 24. The
26 challenged Order held these photographs were not prejudicial to Plaintiff, and therefore
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1 their late production was harmless. Id. Addressing Plaintiff’s generalized contention that
2 the source and origin of the photographs were unknown, Magistrate Judge Skomal
3 ordered Defendant to provide Plaintiff with a declaration addressing the source of the
4 photographs. Id. Plaintiff has not raised arguments alleging error in the challenged
5 Order’s disposition of this particular part of the production. Accordingly, the Court finds
6 no error in Magistrate Judge Skomal’s findings as to the Miscellaneous Photographs.
7 “One on One Notes”
8 Magistrate Judge Skomal found this document was not responsive to Plaintiff’s
9 RFPs but qualified as a supplement to initial disclosures. Id. at 25. In the challenged
10 Order’s finding of harmlessness, Magistrate Judge Skomal noted that “there is not even a
11 vague reference to this document” in Plaintiff’s motion for sanctions, and that Defendant
12 also did not explain why it was not identified sooner. Id. However, Magistrate Judge
13 Skomal found harmlessness because the document solely related to Mr. Baez and Mr.
14 Fernandes’ impressions of Plaintiff, which had already been addressed in previous
15 deposition testimony. Id. Neither party provided this document for this Court’s review.
16 Plaintiff makes little reference to it in his Objection beyond urging generally that he
17 should have had the opportunity to depose witnesses as to all communications relating to
18 work performance. Pl. Mot. at 12, fn. 7. Based on the information before it, this Court
19 finds no error in Magistrate Judge Skomal’s conclusion that the belated production of the
20 One on One Notes was harmless.
21 Magazine Photographs
22 The challenged Order found that the belated production of these photographs was
23 both substantially justified and harmless, since Defendant produced them the same day it
24 received them. Id. at 26. As to harmlessness, Plaintiff concedes that the Magazine
25 Photographs are actually helpful to its arguments. Pl. Mot. at 11, fn. 6. This Court also
26 finds no basis for error in Magistrate Judge Skomal’s conclusion that the belated
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1 || production was substantially justified because Defendant could not have produced the
2 photographs before Defendant had them. On the filings before the Court, there is no
3 || evidence to support Plaintiffs theory that, because Defendant hired the investigator who
4 ||took the photographs, it necessarily had access to the photos before December 23, 2020.
5 || Pl. Reply (ECF No. 47) at 9.
6 IV. CONCLUSION
7 In sum, the Court OVERRULES in part and SUSTAINS in part Plaintiff's
8 || Objection to Magistrate Judge Skomal’s Order.
9 IT IS SO ORDERED.
10 || Dated: August 19, 2021 72
Hon. athe Cee
12 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10084265. Public record. Not legal advice.