1 troutman sanders llp justin nahama, bar no. 281087 · 2019-06-24 · t r o u t m a n i s a n d e...
TRANSCRIPT
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TROUTMAN SANDERS LLPJustin Nahama, Bar No. 281087 [email protected] Wynter L. Deagle, Bar No. 296501 [email protected] Matthew J. Hrutkay, Bar No. 297485 [email protected] Christina Ding, Bar No. 286009 [email protected] 11682 El Camino Real, Suite 400 San Diego, CA 92130-2092 Telephone: 858-509-6000 Facsimile: 858-509-6040
LATHAM & WATKINS LLPBlair Connelly, Bar No. 174460 [email protected] William O. Reckler, admitted pro hac [email protected] 885 Third Avenue New York, New York 10022-4834 Telephone: (212) 906-1239 Facsimile: (212) 751-4864
Attorneys for Plaintiff CROSSFIT, INC.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CROSSFIT, INC., a Delaware corporation,
Plaintiff,
v.
NATIONAL STRENGTH AND CONDITIONING ASSOCIATION, a Colorado corporation,
Defendant.
Case No. 3:14-cv-01191-JLS-KSC
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSSFIT, INC.’S RENEWED MOTION FOR TERMINATING SANCTIONS
Date: September 5, 2019 Time: 1:30 p.m. Dept: 4D Judge: Hon. Janis L. Sammartino
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19690 Page 1 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
TABLE OF CONTENTS
Page
- i - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
I. INTRODUCTION ........................................................................................... 1
II. BACKGROUND ............................................................................................. 3
A. The NSCA’s Destruction and Concealment is Substantially Greater Than the Misconduct Identified in 2017 .................................. 3
1. The NSCA Failed to Institute Any Form of Litigation Hold Until ............................................................... 3
2. The NSCA Lost ESI ................................................................... 4
3. During the Litigation, the NSCA Deleted Incriminating Documents Referencing CrossFit ............................................... 4
4. The NSCA Obstructed Stroz’s Ability to Fully Assess Evidence Spoliation and Facilitate a Complete Production ....... 6
B. The NSCA’s Misconduct Prevented Stroz From Fully Addressing the Court’s Directives in the 2017 Sanctions Order .......... 8
C. The NSCA Concealed Over 279,000 Documents That Expose a Company-Wide Campaign to Manufacture, Publish and Promote Fake “Peer Reviewed” Research to Harm CrossFit ............................. 9
NSCA’s Bias Against CrossFit ...................................................... 10
Commercial Motives to Manufacture Research to Harm CrossFit .......................................................................................... 11
Internally and Externally Promoting the Fake Injury Data in the Devor Article Before and After the Erratum ........................... 12
NSCA Research Misconduct and Dr. Kraemer’s Perjury ............. 12
Promoting False Research to Harm CrossFit in the Military ........ 14
Tracking the Spread and Impact of the NSCA’s Fabricated Research About CrossFit ............................................................... 15
Concealed Evidence Revealing the NSCA’s Intentional Campaign to Perpetuate False Information Through the Erratum .......................................................................................... 17
III. THE NSCA’S DISCOVERY ABUSES AND PERJURY WARRANT TERMINATION UNDER RULE 37 ............................................................ 18
A. Termination Is Appropriate and Necessary Under Rule 37(e) ........... 18
1. ESI that should have been preserved in the anticipation or conduct of litigation was lost and cannot be restored .............. 19
2. The NSCA Failed to Take Reasonable Steps to Preserve the Lost ESI .............................................................................. 22
3. The NSCA Acted with Intent to Deprive CrossFit of the Information in this Litigation ................................................... 24
4. CrossFit is Not Required to Prove Prejudice ............................ 25
B. The NSCA Failed to Provide Information Required by Rule 26(a) in Violation of Rule 37(c).......................................................... 28
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19691 Page 2 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
TABLE OF CONTENTS (continued)
Page
38528541
- ii - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1. Despite Multiple Opportunities, the NSCA Failed to Identify Relevant Custodians .................................................... 28
2. Termination Pursuant to Rule 37(c) is Appropriate in Light of the NSCA’s Willful and Bad Faith Conduct .............. 29
C. The NSCA Failed to Comply with Multiple Discovery Orders in Violation of Rule 37(b) ....................................................................... 29
IV. TERMINATION PURSUANT TO THE COURT’S INHERENT POWERS IS APPROPRIATE IN LIGHT OF THE SCOPE OF THE NSCA’S INTENTIONAL DISCOVERY MISCONDUCT ......................... 33
A. The Five Ninth Circuit Factors Weigh Heavily in Favor of Termination ......................................................................................... 34
1. Public Interest in Speedy Resolution and Case Management Concerns Favor Termination .............................. 34
2. Prejudice to CrossFit Weighs in Favor of Termination ........... 35
3. Termination is Appropriate Because This Action Cannot Fairly Be Tried on the Merits ................................................... 37
4. Termination is Appropriate Because Lesser Sanctions Have Only Increased the NSCA’s Discovery Misconduct ...... 38
B. To Sanction the NSCA’s Repeated and Ongoing Discovery Misconduct, the Court Should Strike the NSCA’s Answer and Enter Default Judgment in Favor of CrossFit ..................................... 39
V. DUE TO THE NSCA’S SPOLIATION RELATED TO CROSSFIT’S DAMAGES, THE COURT SHOULD SANCTION THE NSCA BY PROHIBITING IT FROM OPPOSING CROSSFIT’S DAMAGES EVIDENCE SUBMITTED IN BRIEFING IN LIEU OF A HEARING ...... 39
A. The Court Should Prohibit the NSCA From Challenging CrossFit’s Damages Evidence and From Offering Any Evidence Disputing the Amount of CrossFit’s Damages ................................... 39
B. The Court Should Permit CrossFit to Submit its Damages Evidence In Lieu of a Hearing, Including Reports from Additional Experts to Fairly Address CrossFit’s Damages Based Upon the Concealed Documents Revealing How, Where, and When the NSCA Spread Its Fabricated Research About CrossFit ..... 41
VI. SIGNIFICANT MONETARY SANCTIONS ARE ALSO NECESSARY TO RECTIFY THE PREJUDICE TO CROSSFIT .............. 44
A. Pre-Sanctions Fees Incurred Due to the NSCA’s Intentionally Deficient Pre-Sanctions Discovery, Including Productions, Meet and Confer Efforts, Depositions, Written Discovery Responses, Expert Reports, Motions Practice, and Trial Preparation ................... 45
B. Post-Sanctions Fees for the NSCA’s Defiance of the 2017 Sanctions Order, Depositions Revealing Systemic Evidence Spoliation and the NSCA’s Repeated Concealment of Material Information from the Forensic Evaluator ........................................... 48
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19692 Page 3 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
TABLE OF CONTENTS (continued)
Page
38528541
- iii - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
VII. CONCLUSION ............................................................................................. 50
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19693 Page 4 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
- iv - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TABLE OF AUTHORITIES
Page(s)
Federal Cases
Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406 (9th Cir. 1990) ............................................................................. 35
Am. Rena Int’l Corp. v. Sis-Joyce Int’l Co., Ltd., No. CV 12-6972 FMO, 2015 U.S. Dist. LEXIS 189271, 2015 U.S. .................. 34
Anderson v. Air W., Inc., 542 F.2d 522 (9th Cir. 1976) ......................................................................... 36, 37
Blumenthal Distrib., Inc. v. Herman Miller, Inc., No. ED CV 14-1926-JAK, 2016 U.S. Dist. LEXIS 184932 (C.D. Cal. July 12, 2016) ..................................................................................... 22
Brown Jordan Int’l, Inc. v. Carmicle, No. 0:14-CV-60629-ROSENBERG/BRANNON, 2016 U.S. Dist. LEXIS 25879, 2016 U.S. ..................................................................................... 20
Cat3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488 (S.D.N.Y. 2016) ................................................................. 25
Chambers v. NASCO, Inc., 501 U.S. 32 (1991) .............................................................................................. 33
Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091 (9th Cir. 2007) ................................................................. 31, 35, 38
Dreith v. Nu Image, Inc., 648 F.3d 779 (9th Cir. 2011) ......................................................................... 32, 39
Fair Hous. of Marin v. Combs, 285 F.3d 899 (9th Cir. 2002) ......................................................................... 27, 36
First Fin. Sec., Inc. v. Freedom Equity Grp., LLC, No. 15-cv-1893-HRL, 2016 U.S. Dist. LEXIS 140087, 2016 U.S. ............. passim
G-K Props. v. Redev. Agency of City of San Jose, 577 F.2d 645 (9th Cir. 1978) ............................................................................... 33
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19694 Page 5 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- v - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Hester v. Vision Airlines, Inc., 687 F.3d 1162 (9th Cir. 2012) ............................................................................. 37
In re Korean Ramen Antitrust Litig., 281 F. Supp. 3d 892 (N.D. Cal. 2017)................................................................... 2
Lee v. Max Int’l, LLC, 638 F.3d 1318 (10th Cir. 2011) ........................................................................... 32
NewPark Mall LLC v. CRGE NewPark Mall, LLC, No. 15-cv-0817-PJH, 2016 U.S. Dist. LEXIS 23987, 2016 U.S. ....................... 39
Nutrition Distribut. LLC v. Chaos & Pain, LLC, 2018 U.S. Dist. LEXIS 61748, 2018 U.S. ........................................................... 41
O’Connor v. Powell, Case No. 99 C 6582, 2000 U.S. Dist. LEXIS 12483, 2000 U.S. Dist. WL 1230459 (N.D. Ill. Aug. 23, 2000) ................................................ 39, 40
OmniGen Research, LLC v. Wang, 321 F.R.D. 367 (D. Or. 2017).............................................................................. 19
Ottoson v. SMBC Leasing & Fin., Inc., 268 F. Supp. 3d 570 (S.D.N.Y. 2017) ................................................................. 24
Porter v. City & Cty. of San Francisco, No. 16-cv-03771-CW (DMR), 2018 U.S. Dist. LEXIS 151349, 2018 U.S. ............................................................................................................. 24
Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644 (9th Cir. 1997) ............................................................................... 44
Roadrunner Transp. Servs. v. Tarwater, 642 Fed. Appx. 759, 760 n.1, 2016 U.S. App. LEXIS 4999, 2016 U.S. App. WL 1073104 (9th Cir. Mar. 18, 2016) ............................................... 24
Rodman v. Safeway, 2016 U.S. Dist. LEXIS 137988, 2016 U.S. ......................................................... 44
Sanders v. Matthew, No. 1:15-cv-00395-LJO-EPG, 2018 U.S. Dist. LEXIS 49672, 2018 U.S. ............................................................................................................. 29
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19695 Page 6 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- vi - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Schmalz v. Vill. of N. Riverside, No. 13 C 8012, 2018 U.S. Dist. LEXIS 216011, 2018 U.S. ............................... 19
Tablizo v. City of Las Vegas, 720 F. App’x 875 (9th Cir. 2018) ........................................................................ 29
Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829 (9th Cir. 1986) ................................................................... 18, 33, 34
Toth v. Trans World Airlines, Inc., 862 F.2d 1381 (9th Cir. 1988) ............................................................................. 33
United States v. Kitsap Physicians Serv., 314 F.3d 995 (9th Cir. 2002) ............................................................................... 23
Valley Eng’rs v. Elec. Eng’g Co., 158 F.3d 1051 (9th Cir. 1998) ............................................................................. 36
Waymo LLC v. Uber Techs., Inc., No. C 17-00939 WHA, 2018 U.S. Dist. LEXIS 16020, 2018 U.S. .................... 27
Other Authorities
Federal Rules of Civi Procedure, Rule 26 .............................................. 28, 29, 35, 44
Federal Rules of Civil Procedure, Rule 30(d)(2) ................................................ 47, 49
Federal Rules of Civil Procedure, Rule 37 ........................................................ passim
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19696 Page 7 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 1 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
I. INTRODUCTION
CrossFit, Inc. (“CrossFit”) filed this lawsuit in May 2014 because the
National Strength and Conditioning Association (“NSCA”) published a supposedly
“scientific” study containing false and fabricated data about CrossFit’s injury rate
that was designed specifically to harm CrossFit’s business and reputation. For the
last five years, the NSCA has engaged in nothing short of a marathon of
malfeasance: a consistent, intentional, and malicious pattern of discovery abuses
designed to cover up the NSCA’s wrongdoing and to prohibit CrossFit and the
Court from learning the truth about the NSCA’s fraud. The NSCA’s abuses, and
efforts to conceal its abuses, are among the worst of any published case in modern
history and include systemic perjury, evidence destruction, and evidence
concealment. CrossFit has spent millions of dollars litigating the NSCA’s lies and
it is unfair and impossible for CrossFit to try this case in light of the NSCA’s
malfeasance. CrossFit is conditioned to keep fighting, but it is tired of running the
NSCA’s deceitful marathon; the race is over. The NSCA must be held accountable,
and the NSCA’s misconduct requires termination in CrossFit’s favor.
The NSCA was already sanctioned for its discovery abuses, which only
resulted in an increase in the NSCA’s misconduct. In May 2017, this Court
ordered a neutral forensic evaluation of the NSCA’s servers and other electronic
property to determine the scope of the NSCA’s discovery abuses.1 In response to
the Court’s sanctions, the NSCA sought reconsideration, claiming the sanctions
were too heavy-handed because the NSCA “unintentionally” failed to produce only
70 documents.2 The actual facts—finally revealed through the Court’s forensic
evaluation—prove that the NSCA failed to produce over 279,000 responsive
documents, including thousands directly referencing CrossFit.3 The following
1 Dkt. 176 (“2017 Sanctions Order”). 2 Dkt. 186-1 at 4:28-5:5. 3 Dkt. 319-2 (Stroz Final Report) at 16.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19697 Page 8 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 2 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
highlights just a few of the massive abuses uncovered during the forensic process:
Contrary to 23 sworn declarations from NSCA custodians claiming they
preserved and did not delete documents, the NSCA moved over 33,000
responsive documents into deleted items folders (the virtual trash),
many after the 2017 Sanctions Order;
The NSCA provided its damages expert with key damages documents
while concealing these same documents from CrossFit and its experts;
NSCA failed to institute a litigation hold or engage any basic
preservation tools until , which resulted in the loss of
electronically stored information (“ESI”);
NSCA lost or destroyed over 200 devices including NSCA-owned
laptops, tablets, desktops, mobile phones, and sixteen separate servers;
NSCA lost or destroyed at least 196 responsive documents;
The NSCA repeatedly provided the neutral evaluator with incomplete,
misleading or outright false information so the scope of its evidence
concealment and spoliation would not come to light.
The documents the NSCA hid from CrossFit reveal an extensive, coordinated
NSCA marketing campaign to publish and promote fabricated research—extending
far beyond the Devor Article4—that was manufactured through NSCA’s corrupt
peer-review processes.5 Even worse, these documents directly refute many of the
NSCA’s arguments to the Court in extensive motion practice over the past five
years, including the NSCA’s motion for summary judgment in which the NSCA
4 Michael M. Smith, Allan J. Sommer, Brooke E. Starkoff & Steven T. Devor, Crossfit-Based High-Intensity Power Training Improves Maximal Aerobic Fitness and Body Composition, 27 J. Strength & Cond. Res. 3159 (2013) (RETRACTED 2017) (“Devor Article”). 5 All of the NSCA’s documents and metadata produced through the forensic evaluation should be deemed authentic. In re Korean Ramen Antitrust Litig., 281 F. Supp. 3d 892, 936 (N.D. Cal. 2017) (“To the extent the documents were produced by [defendants] in discovery in this action, and are offered by plaintiffs, their authenticity is established for purposes of these motions.”).
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19698 Page 9 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 3 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
represented to the Court that it was not a commercial competitor while, at the same
time, concealing literally thousands of documents proving that the NSCA
considered CrossFit to be its direct and biggest competitor.
The NSCA has committed discovery misconduct of unprecedented
proportions. As illustrated below, the Court should now terminate under four
independent grounds: Federal Rule of Civil Procedure (“Rule”) 37(e), Rule 37(c),
Rule 37(b), and the Court’s inherent power. Lesser sanctions cannot fairly cure the
prejudice to CrossFit, deter further NSCA misconduct, or allow a fair trial on the
merits. CrossFit respectfully requests the Court (i) strike the NSCA’s Answer;
(ii) enter default judgment against the NSCA; (iii) issue evidentiary sanctions
against the NSCA by permitting CrossFit to submit unopposed damages evidence,
including new and additional expert reports, through briefing in lieu of an
evidentiary hearing; and (iv) issue monetary sanctions against the NSCA.
II. BACKGROUND
A. The NSCA’s Destruction and Concealment is Substantially Greater Than the Misconduct Identified in 2017
Since this lawsuit’s inception over five years ago, the NSCA has failed to
honor its fundamental preservation obligations. The NSCA has repeatedly framed
itself as a victim by labeling CrossFit’s claims as “conspiracy theories” and
suggesting that the grossly-deficient record “strongly support[s] protecting the
NSCA from this litigation.”6 On April 4, 2019, the Court’s neutral forensic
evaluator Stroz Friedberg (“Stroz”) issued its final report on the Court-ordered
forensic evaluation (“Final Report”).7 The Final Report confirms that the NSCA’s
preservation failures and bad-faith conduct resulted in the loss of significant ESI.
1. The NSCA Failed to Institute Any Form of Litigation Hold Until
After CrossFit filed this lawsuit in 2014, the NSCA failed to utilize basic
6 Dkt. 102-1 at 2:5-7. 7 Dkt. 319-2.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19699 Page 10 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 4 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
preservation protocols such as
.8 The forensic evaluation forced the NSCA
to concede that it failed to institute a litigation hold until
.9
2. The NSCA Lost ESI
Unsurprisingly, the NSCA’s preservation failures resulted in lost ESI. Stroz
identified over 200 lost devices10 and 196 irrecoverable, responsive documents.11
Though only the file name is available for some of these irrecoverable documents,
the NSCA cannot dispute that they are responsive. For example:
A PDF titled “CrossFit the Good Fight- You Tube”12; and
Numerous spreadsheets and PDFs the NSCA used to track Facebook analytics, social analytics, and insights about the anti-CrossFit content it was posting in 2014.13
Accordingly, the ESI located on at least 200 lost devices and in at least 196
responsive documents was never produced and is lost forever.
3. During the Litigation, the NSCA Deleted Incriminating Documents Referencing CrossFit
Not only did the NSCA lose a significant amount of ESI, it aggressively
8 Exhibit 1 to the Declaration of Justin Nahama (“Nahama Dec.”) in support of CrossFit’s Renewed Motion for Sanctions (“Renewed Motion”) (K. Cinea Feb. 28, 2018 Depo. Tr.) at 262:1 – 264:14, 296:4-6. Ex. 2 (W. Rivinius Feb. 27, 2018 Depo. Tr.) at 101:24 – 102:9; 106:14 – 106:21. Ex. 3 (showing that the NSCA
). Declaration of Chris Haley in support of the Renewed Motion (“Haley Dec.”) at ¶¶ 6-15. Unless otherwise stated, all referenced exhibits are attached to the Nahama Dec. 9 Dkt. 311-26 at 149 (Ex. S – W. Rivinius May 31, 2018 Depo. Tr. at 462:6-17). 10 Dkt. 319-3. 11 Dkt. 319-2 at 35; Nahama Dec. ¶ 4; Ex. 4; Haley Dec. ¶ 32. 12 Dkt. 319-2 at 37 (listing file name and date of deletion). Notably, the NSCA Publication Director irrecoverably deleted this document from his laptop in September 2017, after the 2017 Sanctions Order and his sanctions-compliance declarations (Dkt. 178 and 189-3). 13 Dkt. 319-2 at 111, 135. These irrecoverably deleted documents appear similar to the documents Stroz produced, as discussed further in Section III.A.1.b., below. See, e.g., Ex. 5-8.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19700 Page 11 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 5 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
concealed this loss for the past five years—even to the extent of perjury. On
June 9, 2017, purportedly in compliance with the 2017 Sanctions Order requiring
declarations from “all relevant NSCA personnel,”14 the NSCA submitted
declarations from nine NSCA employees swearing that they had not destroyed
relevant documents, and that they understood the need to preserve responsive
information.15 After CrossFit confronted the NSCA regarding several missing
custodians,16 the NSCA submitted fourteen additional sworn declarations
discussing individual search efforts to identify relevant documents and reaffirming
that materials related to CrossFit or this litigation had not been destroyed.17
The forensic evaluation has proven all 23 NSCA declarations to be false.
Worse yet, thousands of documents or files containing either “CrossFit” or “Devor
Study” created after the lawsuit commenced were found through the forensic
evaluation in the deleted items folders for the following declarants:18
NSCA Custodian Affirming No Deletion
Deleted but Recovered Documents Created After Lawsuit and Containing the Terms “CrossFit” or “Devor Study”
Marketing/Media (Hobson) 1,318 deleted documents
Publications Director (Cinea) 1,251 deleted documents
Executive Director (Massik) 1,378 deleted documents
Marketing/Media (Rampleberg) 580 deleted documents
Training Director (Clayton) 233 deleted documents
IT Director (Rivinius) 67 deleted documents
Education Director (Smith) 62 deleted documents
Marketing/Media (Meier) 61 deleted documents
14 Dkt. 176 at 10:24-27. 15 Dkt. 178, 189, 190. 16 Ex. 9 at 3-5. 17 Dkt. 189-190. 18 Haley Dec. at ¶ 25. These deletion statistics are based on the following search terms: crossfit; cross fit; devor; smith article; xfit; x fit; or smith study. Id. As the Final Report notes, there were dozens of other relevant search terms that could have produced many more results. Dkt. 319-2 at 31-32.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19701 Page 12 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 6 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Membership Specialist (Wood) 43 deleted documents Senior Director of Membership and Business Development (Douglas)
36 deleted documents
Chief Science Officer (Sharp) 4 deleted documents
Chief Financial Officer (Madden) 2 deleted documents
These deletion statistics prove true the Court’s premonition in its 2017 Sanctions
Order: “Plaintiff should rightly wonder whether documents have been—or will now
be—destroyed.”19 Indeed, the NSCA tried to destroy thousands of documents
referencing CrossFit, and then submitted 23 declarations falsely claiming that no
responsive documents were deleted.
4. The NSCA Obstructed Stroz’s Ability to Fully Assess Evidence Spoliation and Facilitate a Complete Production
The misconduct discussed above does not capture the full scope of the
NSCA’s malfeasance. Consistent with the Court’s comments in its October 19,
2018 Order, the forensic evaluation was “delayed time and again by the NSCA’s
inability to identify relevant custodians, provision of incomplete or inaccurate asset
inventory records, untimely production of native documents, and inability to verify
the keywords used to produce responsive documents in the State Court Action or
this proceeding.”20 The Final Report crystallizes the Court’s sentiments.
Incomplete Search Terms. At the outset of the evaluation, Stroz asked the
NSCA to provide the search terms it utilized for its deficient document productions
before the 2017 Sanctions Order so Stroz could locate and quantify how many
responsive documents the NSCA failed to produce.21 The NSCA identified 38
search terms that it allegedly used in this action and the NSCA’s State Action.22
But six months into the forensic evaluation—only after being confronted by
19 Dkt. 176 at 9:9-10. 20 Dkt. 302 at 24:17-21. 21 Ex. 10 at 7. 22 Id. “State Action” refers to the lawsuit styled, National Strength & Conditioning Association v. CrossFit, Inc., Case No. 37-2016-00014339-CU-DF-CTL, San Diego Superior Court (voluntarily dismissed by the NSCA in December 2018).
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19702 Page 13 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 7 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CrossFit—the NSCA admitted that it did not actually know whether those search
terms had been used in the first instance.23 The NSCA then provided Stroz with
numerous other “potential” search terms, adding more delay and costs.24
Concealed Custodians. Also at the start of the evaluation, Stroz identified
39 NSCA representatives as custodians with relevant information.25 The NSCA
represented that these individuals were a full and complete list of potential
custodians.26 Nearly five months later—after CrossFit identified dozens of omitted
custodians—the NSCA admitted that there were over one hundred additional
custodians, while disingenuously claiming it had not been required to identify all
relevant custodians to Stroz.27 This admission derailed Stroz’s projected timeline,
unnecessarily increased costs, and forced Stroz to assess the NSCA’s misconduct
by shifting to a collection strategy centered on devices instead of custodians.28
Concealed Devices. Based on the NSCA’s misconduct, Stroz shifted its
focus from identifying NSCA custodians to identifying NSCA-owned devices with
discoverable evidence.29 The NSCA continued to present incomplete, misleading,
or outright false asset-inventory records because it knew over 200 of these devices
were not preserved and that these missing devices proved the NSCA’s sanctions-
compliance declarations contained material lies.30 For example, the NSCA had
previously told Stroz that it did not own Dr. William Kraemer’s31 computers or cell
23 Dkt. 261-2 at 7-8; Dkt. 302 at 10:2-6, 11:4-12:5. 24 Dkt. 302 at 12:1-5. 25 Dkt. 302 at 8:28-9:2. 26 Id. at 10:20-24. 27 Id. at 10:11-24 (Stroz reminding NCSA counsel: “Stroz created the first draft of Appendix A subject to the parties’ review and confirmation of its accuracy at the time.”).28 Id. at 11:9-23. 29 Id.30 Ex. 11. See also Dkt. 319-3. 31 William Kraemer was the NSCA’s former President and long-time Editor in Chief of the NSCA’s Journal of Strength and Conditioning Research (“JSCR”), who led the charge to coerce the fake injury data from the Devor Article. Dkt. 315-2 at ¶¶ 2-4. Declaration of E.H. Morreim in support of the Renewed Motion (“Morreim Dec.”) at ¶ 13.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19703 Page 14 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 8 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
phones.32 That was a lie. Shortly after the NCSA unsuccessfully tried to disqualify
Stroz,33 damning evidence surfaced that Dr. Kraemer had wiped and/or failed to
produce his computers and cell phones, and that these actions were taken with
knowledge of NSCA leadership.34 The NSCA later conceded it owned all of
these devices.35 Although Stroz confirmed analysis of 225 NSCA devices, the
NSCA was eventually forced to concede it did not know whether over 240 other
devices were produced for the forensic evaluation.36
B. The NSCA’s Misconduct Prevented Stroz From Fully Addressing the Court’s Directives in the 2017 Sanctions Order
Objective of Forensic Evaluation. The Court directed Stroz to (i) identify
and produce documents previously withheld by the NSCA, and (ii) “conduct
preliminary forensic analysis on certain key systems and data sets to identify
evidence of data deletion and/or installation or use of wiping tools since the
litigation holds were put into effect.”37
Limitations of Forensic Evaluation. Stroz conclusively identified
spoliation through mass deletions and irrecoverable documents that were
presumptively responsive.38 However, the Final Report does not discuss or
analyze: (i) recoverable deletions (documents that were possessed by another
custodian or otherwise restored)39; (ii) items without any forensic record of deletion
(such as emails deleted from servers)40; or (iii) deletions caused by the NSCA’s
failure to implement back-end preservation methods or a timely legal hold.41
32 Dkt. 315-3 at 20; Dkt. 315-2 at ¶¶ 2-6. 33 Dkt. 257. 34 Dkt. 315-2 at ¶¶ 2-6. Dkt. 315-3 at 16 (J. Kraemer Dec. 11, 2018 Depo. Tr. at 83:20-84:2). 35 Id. Dkt. 319-2, 319-3. 36 Dkt. 319-2 at 12-13. 37 Ex. 10 at 3. Dkt. 176 at 10:22-23; Dkt. 319-2 at 5. 38 Dkt. 319-2 at 14 (“Potentially Relevant Documents and mass deletions were identified across some devices.”).39 The Final Report does not address the NSCA’s deletion efforts related to files recovered from “deleted items” folders. Dkt. 319-2 at 13. 40 Haley Dec. at ¶¶ 14-15. 41 Id. at ¶¶ 6-13.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19704 Page 15 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 9 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Further, it is impossible for Stroz or any other entity to confirm whether responsive
ESI was destroyed from (i) 200 lost devices that were not produced to Stroz;
(ii) nearly 1,000 irrecoverable documents for which only the file name was
recovered42; and (iii) lost ESI with little or no traceable forensic evidence.43
Notwithstanding these limitations, the forensic evaluation recovered thousands of
previously-concealed documents, including many that were deleted but recovered,
as revealed by the metadata and documents that Stroz produced to the Parties for
their further analysis.44 Although Stroz declined to analyze the produced
documents and metadata, the data reveals that the NSCA tried to delete thousands
of material documents referencing CrossFit throughout the litigation.45
C. The NSCA Concealed Over 279,000 Documents That Expose a Company-Wide Campaign to Manufacture, Publish and Promote Fake “Peer Reviewed” Research to Harm CrossFit
The NSCA claimed the 2017 Sanctions Order was too harsh because “only []
70 individual documents were not produced.”46 In reality, 279,554 responsive
documents47 were previously withheld by the NSCA and would not have been
produced but for the forensic evaluation—including over 37,900 de-duplicated
documents containing irrefutably-responsive search terms such as “CrossFit”
variations and “Devor.”48 This figure is even more shocking when compared to the
mere 439 documents that the NSCA produced before the 2017 Sanctions Order.49
The forensic evaluation confirms that the NSCA hid an extensive marketing
campaign to harm CrossFit’s business by falsely claiming CrossFit training was
42 Dkt. 319-2 at 35-243. 43 Haley Dec. at ¶¶ 14-15. 44 Dkt. 319-2 at 16 (“Stroz provided production overlays [that] contained images and/or metadata fields”). 45 Haley Dec. at ¶¶ 23-28. 46 Dkt. 186-1 at 4:28-5:5. In its effort to disqualify Stroz, the NSCA further claimed that “it is very likely that a large majority of the data will not be responsive.” Dkt. 274 at 14:7-17. 47 Dkt. 319-2 at 16. 48 Haley Dec. at ¶ 19. 49 Id. at ¶ 29; Nahama Dec. at ¶ 12
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19705 Page 16 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 10 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
unsafe. Throughout this litigation, the NSCA has consistently maintained that it is
a nonprofit, scientifically-based organization that neither competes with, nor has an
opinion of, CrossFit training.50 The withheld documents produced through the
forensic evaluation reveal, however, that the NSCA (i) is biased against CrossFit;
(ii) actively sought pre-determined “science” to frame CrossFit training as unsafe;
(iii) repeatedly abused its peer-review processes to coerce and manufacture
“research” finding a disproportionate injury risk in CrossFit training; (iv) promoted
the fabricated “research” across the NSCA’s publications, conferences, and social
media; and (v) closely tracked the impact and popularity of its manufactured
“research” to salvage declining NSCA revenue. Equally flagrant, the unearthed
documents reveal that the NSCA’s leadership and Board of Directors were aware of
the NSCA’s systematic scientific misconduct.
The NSCA’s so-called “science” was particularly impactful because the
NSCA knew that before the Devor Article, there was no peer-reviewed literature on
the injury risks of CrossFit training.51 While the present page limits do not allow
CrossFit to summarize all concealed documents, the following examples eliminate
any possible doubt that the NSCA’s document concealment was intentional, and far
greater than the allegedly 70 concealed documents identified in 2017:
NSCA’S BIAS AGAINST CROSSFIT
Two days after the Sandy Hook tragedy, NSCA’s Program Manager wrote: “As an aside, why do terrorists have to attack schools? Why can’t they help us with human quality control and attack crossfits and walmarts?”52
As early as 2010: “Yeah . . . internally, we’re against crossfit.”53
The NSCA’s Executive Director and Marketing leadership discussed: “Do we really need to attack CrossFit? And couldn’t we say what we believe or what our
50 Dkt. 176 at 2:24-3:1. 51 Ex. 12 at 1. 52 Ex. 14. Notably, while the NSCA was internally and externally against CrossFit for marketing purposes, they were leading CrossFit workouts for NSCA personnel at NSCA’s headquarters during lunch. Ex. 15. 53 Ex. 13.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19706 Page 17 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 11 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
research has shown?”54
In 2012, the NSCA’s Marketing Manager sent media outlets “the NSCA’s stance on Crossfit currently,” which emphasized injury risks.55
COMMERCIAL MOTIVES TO MANUFACTURE RESEARCH TO HARM CROSSFIT
2012 internal reports containing “strategies to capitalize on what Crossfit does well, and arming NSCA CPT’s56 with scientific rationale as to the weaknesses of Crossfit” to improve NSCA’s “business development/marketing standpoint.”57
2012 NSCA leadership meetings to instill fear about CrossFit through NSCA media content: “Numerous re-do’s required for video; must be certain it is universally approved the first time. Previous instilment of fear for discussing controversial topics (e.g. crossfit).”58
To curb declining NSCA membership in April 2013: “We need to find a way to create our own ‘Buzz.’ Provide feedback on what is trending, i.e., crossfit.”59
NSCA developed “canned presentations” about dangers in CrossFit training, which NSCA leadership described as “indeed highly marketable, potentiallyrevenue-generating talks. If done well (i.e. scientifically), they can also fulfill our Education requirement.”60
61
62
54 Ex. 16. 55 Ex. 17; Ex. 18. 56 Upon information and belief, “CPTs” mean Certified Professional Trainers. The NSCA then concealed its efforts to track how many NSCA CPTs were viewing the Devor Article and Hak Study across NSCA platforms (i.e., JSCR, NSCA iPad App, etc.). Ex. 19-22. 57 Dkt. 311-7 at 31 (¶10) (emphasis added). The NSCA made this statement at the same time it was coercing the fake injury data in the Devor Article. 58 Dkt. 311-8 (emphasis added). 59 Ex. 23. 60 Id. (emphasis added). Ex. 24 (emphasis added). 61 Ex. 25. 62 Ex. 26.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19707 Page 18 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 12 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERNALLY AND EXTERNALLY PROMOTING THE FAKE INJURY DATA IN THE DEVOR ARTICLE BEFORE AND AFTER THE ERRATUM
The NSCA reviewed and shared links to multiple media sources promoting the fake injury data just weeks after the Devor Article was published in the JSCR.63
In June 2015 (after the NSCA decided to issue its misleading Erratum), the NSCA’s corporate sponsorship department forwarded to a lucrative sponsor links to popular media articles focusing on the fake injury data, while highlighting the NSCA’s close relationship with its “friends at Gatorade.”64
In October 2016 (after the Erratum), the NSCA sent media articles with the fake injury data to fitness industry contacts, noting the articles are a “must read!”65
NSCA RESEARCH MISCONDUCT AND DR. KRAEMER’S PERJURY
The concealed documents prove that CrossFit’s scientific publishing ethics
expert was prevented from rendering complete opinions. Specifically, the withheld
evidence—including 89 documents regarding the Devor Article peer review
process66—establishes that the NSCA committed multiple instances of research
misconduct as defined in the Code of Federal Regulations and well-settled research
ethical standards, including:
Engaging in “detrimental research practices” by (1) its corrupt peer review practices, (2) cloaking unscientific recommendations as science- and evidence-based, (3) failing to timely correct the scientific literature in the Devor Article, and (4) corrupting and falsifying the peer review process for the Hak Study67;
Committing “fabrication” research misconduct by directly inducing the production of fabricated data in the Devor Article;
Committing “falsification” research misconduct in the Erratum by omitting crucial data regarding the falsity of the injury data, so that the truth was not accurately represented in the research record; and
Committing “falsification” research misconduct in connection with the Retraction of the Devor Article by failing to state crucial data regarding
63 Ex. 27. For example, in its interrogatory responses, the NSCA claims it first learned of the Outdoor Magazine article “Crossing Swords with CrossFit” on August 7, 2014 (Ex. 28 at 69:16-18), but Ex. 27 confirms that the NSCA discussed this article as early as December 2013. The NSCA’s interrogatory responses are demonstrably false, and further discovery cannot be trusted. 64 Ex. 29. 65 Ex. 30. 66 Haley Dec. at ¶ 30. Nahama Dec. at ¶ 32. 67 Paul Taro Hak, Emil Hodzovic & Ben Hickey, The nature and prevalence of injury during CrossFit training, J. Strength & Cond. Research (November 22, 2013) (“Hak Study”); see also Second Amended Complaint ¶¶132-134.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19708 Page 19 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 13 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the falsity of the injury data, so that the truth was not accurately represented in the research record they produced.68
Further, concealed documents regarding the Hak Study, EMS documents
produced by the NSCA’s publisher (never produced by the NSCA), and documents
produced by Dr. Kraemer reveal that the NSCA outright fabricated the peer review
process for the Hak Study and to harm CrossFit:
Dr. Kraemer “assigned himself to serve as both Editor in Chief and Senior Associate Editor [SAE] for the Hak Study. As Editor in Chief, he would be able to control the Peer Review Process” for the Hak Study.69 Dr. Kraemer then either assigned two of his graduate students as peer-reviewers, or outright fabricated the peer review, while concealing these efforts by bypassing the NSCA’s default peer-review software.70 Further,
The JSCR’s publisher confirms that no EMS records exist evidencing any peer reviewer communications related to the Hak Study or that any “peer reviewer” comments on the Hak Study were actually input by peer reviewers. The only people who accessed the peer-review software for the Hak Study during the Peer Review process were Dr. Kraemer, Joan Kraemer, and the Hak Study’s author.72
NSCA’s leadership and Board of Directors were aware of Dr. Kraemer’s misconduct during the Hak Study. One NSCA director emailed another: “I am not convinced that two independent, blinded reviewers were assigned to and reviewed the most recent article in question. When the EIC or SAE (or EIC/SAE's current graduate students) reviews a paper, they are not blinded.”73
68 Morreim Dec. ¶ 8. 69 Declaration of Jennifer Brogan Mahoney on Behalf of Wolters Kluwer Health, Inc. (“Mahoney Dec.”) at ¶¶ 34. See also Ex. 31 (
).
The NSCA conducts its Editorial Process for JSCR articles through its publisher’s “Editorial Manager System” (“EMS”). Dkt. 319-2 at 9. EMS records for the Devor Article identify each communication to and from each peer reviewer. No EMS records exist evidencing peer reviewer communications related to the Hak Study. Mahoney Dec. ¶¶ 12-18, 28-38. Nahama Dec. ¶ 32; Morreim ¶¶ 64-68. 71 Morreim Dec. ¶ 66. 72 Mahoney Dec. ¶¶ 31-37. 73 Ex. 32 (emphasis added). Morreim Dec ¶ 60. 74 Ex. 31 at 13. This document perfectly illustrates the prejudice to CrossFit from the NSCA and Dr. Kraemer’s failure to preserve the content on the NSCA-owned
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19709 Page 20 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 14 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The concealed documents also reveal that Dr. Kraemer lied under oath in
July 2015 by testifying that he never acted as a peer reviewer for NSCA
publications while serving as Editor in Chief.75 Withheld JSCR reports revealed
that Dr. Kraemer in fact served as a peer reviewer (breaking the double blind) in up
to thirty-five percent of those JSCR articles.76 Confronted with this evidence in
his December 2018 deposition, Dr. Kraemer conceded that he served as a peer
reviewer while acting as the JSCR Editor in Chief on at least 100 occasions.77
PROMOTING FALSE RESEARCH TO HARM CROSSFIT IN THE MILITARY
Between 2012 and 2014, the NSCA also used its purportedly peer-reviewed
“TSAC Report”78 to manufacture and publish research falsely promoting a
disproportionate injury risk in CrossFit training, including:
Publishing the article “Evidence-based physical training: do CrossFit or P90X make the cut,” which concluded that there are increased injuries in CrossFit/ECPs because CrossFit does not follow “progressive exercise models” like those recommended by the NSCA, and that CrossFit’s popularity “does not appear to be warranted. There is little evidence from peer-reviewed studies that ECPs are safe and/or effective, particularly when compared to established training programs documented to improve military task performance.”79
Claiming the actual injury rate in CrossFit is higher than the fake injury data rate, while undercutting the “positive” conclusions by claiming available research does not find CrossFit training yields VO2 max improvements.80
Defending the fake injury data when popular military media outlet asked for comment: “The only question that has ever come up regarding the dropout rate was an article written by a crossfit employee published in the crossfit journal.”81
computers and cell phones that Dr. Kraemer used at University of Connecticut and Ohio State University. 75 Dkt. 315-3 at 83 (W. Kraemer July 15, 2015 Depo. Tr. at 164:1-2). 76 See, e.g., Ex. 33 at 5. 77 Dkt. 315-3 at 9 (W. Kraemer Dec. 11, 2018 Depo. Tr. at 149:19-25, 151:3-17). 78 The purpose of the NSCA’s Tactical Strength and Conditioning (“TSAC”) Report is “to disseminate peer reviewed information specifically targeted toward the training of the tactical athlete (SWAT, military, police, fire/rescue fighting, and EMS personnel).” Ex. 34 at Slide 20. 79 Ex. 12 (emphasis added). See also Ex. 35; Ex. 36 at 18. 80 Ex. 35.81 Ex. 37.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19710 Page 21 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 15 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Ignoring peer reviewers who suggested the NSCA’s fear-mongering content on CrossFit did not merit publication, and publishing that article anyway.82
Providing handouts at national NSCA events that falsely claim CrossFit 83
84
85
At a 2013 NSCA Military Conference, delivering an NSCA presentation titled “Extreme Conditioning Programs; Evaluating and Managing the Risk,” which claimed that doctors “and rehabilitation providers have identified a potential emerging problem of disproportionate musculoskeletal injury risks, particularly for novice participants, associated with ECPs.”86
TRACKING THE SPREAD AND IMPACT OF THE NSCA’S FABRICATED RESEARCH ABOUT CROSSFIT
Annual draft and final PowerPoints from 2012 through 2018 providing various analytics about the JSCR’s most popular articles, including the Devor Article and Hak Study. The 2014 report87 shows the Devor Article was the most viewed article on OVID’s academic journal platform (slide 7); “CrossFit” was the most popular “Search Keyword[] Driving Traffic to JSCR Journal Website” (slide 12); the NSCA was tracking “referrals” it received from CrossFit-related injury content (slide 14, line 25); the Devor Article received 5,129 “Full Text Views” that year (slide 16); the Devor Article had 7,574 views on the NSCA’s iPad App that year, making it the top article viewed in 2014 (slide 18); and the Hak Study ranked third in 2014 OVID views with 3,664 (slides 7/16).
The NSCA’s Publications Director tried to delete monthly reports tracking, inter alia, the Devor Article as part of its “Impact Factor analysis.”88
By 2017, the Devor Article was the most popular article in JSCR history
82 Compare Ex. 38 (peer reviewer concluding, “I don't believe this article merits publication in the TSAC Report”) with Ex. 36 at 18 (published article). 83 Compare this to the near-identical false statement made by the NSCA’s Chief Science Officer to the US Air Force in April 2013 claiming CrossFit is not accredited or designed to meet the needs of the military. Dkt. 176 at 5:7-12. 84 Ex. 39. Ex. 40 (suggesting that the NSCA used Ex. 39 as “Handout material”). 85 Ex. 41. See also Ex. 42-43 (various NSCA departments coordinating an attack on CrossFit to advance the NSCA’s military marketing). 86 Ex. 44. 87 Ex. 20. 88 Ex. 45 (deleted report citing Devor Article titled, “JSCR Top Cited Articles XLS.”). Haley Dec. ¶ 23.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19711 Page 22 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 16 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
based on analytics the NSCA’s publisher compiled across news outlets, social media, academic journals, and policy documents.89
Dr. Kraemer directed NSCA representatives to delete content revealing the NSCA’s efforts to drive consumers to the NSCA by using the term “CrossFit.”90
2012 reports from the NSCA’s media and marketing team summarizing the popularity of its TSAC Report articles containing manufactured research about CrossFit, noting that CrossFit is a controversial topic and that the NSCA benefits from creating buzz around CrossFit.91
2013 reports from the NSCA’s media and marketing team providing analytics about the NSCA’s Facebook posts promoting the Devor Article and TSAC articles, including a teaser for a TSAC article, stating, “Hot in the news right now is rhabdomyolysis and its frequent appearance in the Crossfit community,” which had 441 likes and an estimated “Lifetime Reach” of 25,408 people.92
July 2014 Google Alerts received and reviewed by NSCA Executives and media team that characterized the Devor Article as “revealing” CrossFit’s injury rate.93
Internal marketing reports listing search terms used on NSCA platforms driving traffic to NSCA content: “CrossFit”; “crossfit injuries”; “article on crossfit”; “cross fit”; “crossfit and vo2” [referring to the Devor Article]; “the nature and prevalence of injury during crossfit” [the formal title of the Hak Study]; and “crossfit friend or foe.”94
Thousands of pages of “Meltwater Buzz” analytics where the NSCA tracked the benefits it received from NSCA content in the media. For example, a May 2013 report tracking the references to the Devor Article, and an August 2013 report tracking CrossFit’s efforts to defend itself from the fake injury data.95
The NSCA tracked and “scored” Facebook and Twitter posts around the world referencing the Devor Article to assess whether they were harming CrossFit and helping the NSCA, including:
o In February 28, 2013 (the month the Devor Article was published ahead of print): “first study showing the benefits of crossfit for improving fitness and body composition: High injury rate though”96;
89 Ex. 22 at slides 22-24. 90 Ex. 46; Ex. 47 at 14. 91 Ex. 48. 92 Ex. 5. 93 Ex. 49. 94 Ex. 50. 95 Ex. 51-52. 96 Ex. 53 at row 474 (emphasis added).
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19712 Page 23 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 17 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
o Dozens of tweets stating that “Crossfit-based training for 10 weeks improved aerobic fitness and body comp but 17% drop out due to injuries” and providing a link to the Devor Article on PubMed97; and
o “Crossfit improves VO2 max but only if you can avoid the injuries. 16 of 54 participants dropped out due to injury.”98
After the NSCA’s misleading Erratum in 2015: “we had an upswing over February (thank you, CrossFit controversy).”99
CONCEALED EVIDENCE REVEALING THE NSCA’S INTENTIONAL CAMPAIGN TO PERPETUATE FALSE INFORMATION THROUGH THE ERRATUM100
NSCA’s leadership and marketing teams closely tracked media coverage of the Erratum’s misleading language referencing CrossFit injuries, which led them to consider whether “to take a proactive approach to clarifying anything about the erratum” after acknowledging the Erratum could be interpreted to mean “the conclusion of the article was that crossfit is not safe.”101
The NSCA’s Publications Director was aware that in December 2016, the Devor Article and Hak Study were still being cited in popular military journals—without reference to the Erratum—for the proposition that CrossFit training is dangerous.102
The NSCA concealed evidence revealing the Erratum was not properly linked to the Devor Article for at least nine months.103 In June 2016—over three years after the Devor Article’s initial publication—the NSCA’s Publication Director emailed the NSCA’s publisher stating, “We need to link the erratum to the online published article so that those viewing the article know there is an erratum and can click through to it.”104
The NSCA intentionally suppressed international media articles that accurately
97 Id. at rows 369-382. These tweets illustrate that the false injury data began spreading immediately after the Devor Article was published ahead of print in February 2013. 98 Id. at rows 73-74. 99 Ex. 54 (April 2, 2015 email reporting on January, February and March traffic to NSCA website). 100 As reflected in the Forensic Protocol, the NSCA led CrossFit to believe that it had produced all responsive documents relating to the Devor Article Erratum and Retraction as of May 24, 2017—two days before the 2017 Sanctions Order. Ex. 10 at 2 (identifying NSCA pre-Sanctions productions). 101 Ex. 55. See also Ex. 56, 57 (fifth paragraph). 102 Ex. 58 (NSCA Publications Director possessed a Military Medicine Journal article citing the Devor Article and Hak Study without reference to the Erratum). 103 Ex. 59 (in January 2016, NSCA Publications Director admitted: “The erratum for the Devor article is not coming up”). 104 Ex. 60.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19713 Page 24 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 18 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
reported the NSCA’s publication of false information about CrossFit. For example, in February 2016, the NSCA’s Publications Director wrote an email and letter to a popular London fitness magazine about its coverage of the Erratum, denying that the fake injury data was “unsubstantiated.”105
The NSCA’s Publications Director and Marketing Department concealed that, as early as March 2015, they were discussing the study participant declarations stating they were never injured—eliminating any doubt that the NSCA knew the injury data was fake, but the NSCA still perpetuated the false information through the misleading Erratum.106
The NSCA’s Publications Director discussed with its marketing and media teams how media outlets promoted the fake injury data in the Erratum.107
This is a mere fraction of the documents the NSCA failed to produce and tried to
bury—there are over one hundred thousand more. In addition to exposing the
NSCA’s extensive marketing campaign to harm CrossFit’s business and corrupt
peer review practices, these withheld documents prove the NSCA thumbed its nose
at the 2017 Sanctions Order by claiming only 70 documents were not produced.108
III. THE NSCA’S DISCOVERY ABUSES AND PERJURY WARRANT TERMINATION UNDER RULE 37
Based on the NSCA’s irrefutable misconduct—supported by the forensic
evaluation—the Court should enter default judgment against the NSCA pursuant to
Rule 37(e), (c), and (b), and the Court’s inherent power to “impose sanctions
including, where appropriate, default or dismissal.” Thompson v. Hous. Auth. of
City of L.A., 782 F.2d 829, 831 (9th Cir. 1986).
A. Termination Is Appropriate and Necessary Under Rule 37(e)
Rule 37(e)(2) authorizes this Court to presume that lost ESI is unfavorable to
an offending party and to enter default judgment against that party if: (i) ESI that
should have been preserved in the anticipation or conduct of litigation is lost and
105 Ex. 61-62. 106 Ex. 63. 107 Ex. 64 (referencing an Outside Magazine Article that falsely stated, “The correction also notes that two of the participants failed to finish the study due to “injury or health conditions.”). 108 Dkt. 186-1 at 4:28-5:5.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19714 Page 25 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 19 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
cannot be restored or replaced; (ii) a party failed to take reasonable steps to
preserve it; and (iii) the party acted with the intent to deprive another party of the
information’s use in the litigation. All three are true here.
1. ESI that should have been preserved in the anticipation or conduct of litigation was lost and cannot be restored
There is no question that ESI has been irrecoverably lost due to the NSCA’s
failure to satisfy basic preservation obligations. The NSCA’s unwillingness to
provide accurate, consistent, and complete information to Stroz and to CrossFit has
made the process of identifying all categories of lost information extremely
difficult. Regardless, the NSCA cannot deny that it irrecoverably lost at least 200
devices and 196 responsive documents.
a. ESI on 200 devices is lost, and cannot be restored
The NSCA has admitted it lost and has not provided to Stroz 200 devices,
including laptops, tablets, desktops, mobile phones, and sixteen separate
servers.109 See, e.g., OmniGen Research, LLC v. Wang, 321 F.R.D. 367, 372
(D. Or. 2017) (terminating case where multiple devices were lost); Schmalz v. Vill.
of N. Riverside, No. 13 C 8012, 2018 U.S. Dist. LEXIS 216011, at *5, 2018 U.S.
Dist. WL 1704109, at *1 (N.D. Ill. Mar. 23, 2018) (finding ESI lost where
defendant could not locate multiple devices).
There are two reasons to presume responsive ESI was located on these
missing devices. First, many of these lost devices were assigned to key NSCA
custodians leading the campaign to harm CrossFit, including:
NSCA Executive Director Michael Massik’s laptop and tablet;
NSCA Conferences/Events Director Virginia Meier’s two laptops, one tablet, and five cell phones;
NSCA Senior Director of Membership and Business Development Scott Douglas’ laptop, three tablets, and three phones;
109 Dkt. 319-2 at 12-13 and Dkt. 319-3 (listing over 200 devices for which the NSCA “doesn’t know” the location). The NSCA’s misconduct contravenes its own bylaws, which require its Executive Director to “ensure off-site backup of all computers.” Ex. 65 at 39.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19715 Page 26 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 20 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
NSCA Publications Director Keith Cinea’s tablet and three phones;
JSCR Editor in Chief William Kraemer’s two desktops, two laptops, and five phones (all NSCA-owned devices); and
JSCR Managing Editor Joan Kraemer’s desktop, three laptops, and four phones (all NSCA-owned devices).110
Second, these key custodians stored unique data locally on their devices—
data that is not located through another device or source.111 For example, NSCA
Events Director Virginia Meier’s produced devices contain over 5,700 unique
documents—that is, copies of these documents were not located through other
sources or custodians.112 One of Ms. Meier’s locally-saved documents produced
through the forensic evaluation is critical, in that it undermines the academic
integrity of a JSCR peer reviewer and is direct evidence of the NSCA’s academic
fraud.113 The NSCA has admitted that at least two other laptops used by Ms. Meier
are lost.114 Given Ms. Meier’s practice of saving documents locally, it is reasonable
to assume that responsive and unique ESI on her two lost laptops has also been
lost.115 See generally Brown Jordan Int'l, Inc. v. Carmicle, No. 0:14-CV-60629-
ROSENBERG/BRANNON, 2016 U.S. Dist. LEXIS 25879, at *14, 2016 U.S. Dist.
WL 815827, at *4 (S.D. Fla. Mar. 1, 2016) (finding that ESI could not be restored
or replaced where defendant lost personal and company-owned devices and failed
to produce them in discovery).116
No additional discovery could be more expansive than the wholesale forensic
110 Dkt. 319-3. Notably, 17 of the 200 devices are associated with the Kraemers – none of which were provided to Stroz and all of which have been lost. Dkt. 319-2 at 10-12. 111 The NSCA’s IT representative, Wayde Rivinius, testified that
. Ex. 2 (W. Rivinius Feb. 27, 2018 Depo. Tr. at
60:7-12). Ex. 66 (showing ). 112 Haley Dec. at ¶ 22. 113 Ex. 67. Haley Dec. at ¶ 22. 114 Dkt. 319-3. 115 Haley Dec. at ¶ 22. 116 See also Rule 37(e)(2) (“[U]pon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party”).
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19716 Page 27 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 21 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
collection of all ESI storage devices that the NSCA produced as part of the Court-
ordered forensic evaluation. Despite this massive ESI discovery exercise, unique
and relevant sources of ESI are lost and not replaceable.
b. 196 documents were irrecoverably deleted by key NSCA custodians during the litigation and cannot be restored or replaced
NSCA custodians directly involved in its anti-CrossFit marketing campaign
irrecoverably deleted hundreds of documents during this litigation.117 Similar to
the NSCA’s prior assertion that it inadvertently concealed “only 70 documents,”118
the NSCA now incredibly claims that “Stroz’s Final Report found . . . deletion of
only one document that had anything to do with CrossFit.”119 That is false.
Appendix E of the Final Report identifies over 900 documents that were
irrecoverable and only identifiable by file name.120 196 of these irrecoverable
documents are presumptively responsive because either (i) the file name contains an
agreed-upon search term, or (ii) the file name is similar to that of other responsive
documents produced by the NSCA (such as those identified above in Section
II.A.2.).121 For example, one irrecoverably destroyed document, identified in the
Final Report by file name: “Facebook Insights Posts Data Export – NSCA – August
2014.xls”122 is similar in formatting to a Stroz-produced document named,
“Facebook Insights Data Export - NSCA - 2016-11-03.XLS.”123 However, the
irrecoverably destroyed file contains the NSCA’s tracking data from 2014—the
year immediately after the Devor Article was published—and thus, would have
been critical evidence showing that the NSCA was well-aware of CrossFit’s
117 Dkt. 319-2 at 14. 118 Dkt. 186-1 at 4:28-5:5. 119 Ex. 68 at 2. 120 Dkt. 319-2 at 35. 121 Nahama Dec. at ¶ 4. Exhibit 4. Many of these irrecoverable file names are related to the NSCA’s sophisticated tracking of misinformation related to CrossFit. 122 Dkt. 319-2 at 135. 123 Ex. 6.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19717 Page 28 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 22 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
damages as a result of the fake injury data. This evidence is relevant to CrossFit’s
calculation of its reputational and corrective advertising damages. Exhibit 4 lists
the file names of all 196 presumptively-responsive, irrecoverable documents.124
The 200 devices, 196 irrecoverable documents, and damning circumstantial
evidence confirm that responsive ESI—which should have been preserved by the
NSCA—has been lost and cannot be restored or replaced.
2. The NSCA Failed to Take Reasonable Steps to Preserve the Lost ESI
To terminate under Rule 37(e), the Court also must find that the NSCA failed
to take “reasonable steps” to preserve the lost ESI. A litigant’s preservation
obligation includes “implementation of a full litigation hold to ensure preservation
of relevant documents is required.” Blumenthal Distrib., Inc. v. Herman Miller,
Inc., No. ED CV 14-1926-JAK (SPx), 2016 U.S. Dist. LEXIS 184932, at *33
(C.D. Cal. July 12, 2016) (emphasis added).
The NSCA did not institute any written litigation hold125 until
,126 and not until years after many additional
preservation triggers, including:
the Court’s July 15, 2015 Order questioning the NSCA’s preservation efforts127;
The NSCA Publications Director’s August 7, 2015 Court-ordered declaration regarding the NSCA’s preservation protocol128;
CrossFit’s detailed September 2, 2015 preservation demand letter129;
the July 16-17, 2015 deposition of the NCSA corporate representative on preservation issues130; and
124 Exhibit 4. 125 The NSCA withheld as privileged
. Therefore, CrossFit cannot ascertain whether the NSCA’s legal hold actually provided sufficient instructions to recipients, including document categories to preserve, how to preserve the documents, or whether compliance with the communication was tracked in any manner. Nahama Dec. at ¶ 72. 126 Dkt. 311-26 at 145 (Ex. S—W. Rivinius May 31, 2018 Depo. Tr. at 462:6-17). 127 Dkt. 59 at 8:12-26. 128 Ex. 69 at ¶¶ 2-10. 129 Ex. 70. Dkt. 311-25 at 137 (Ex. R—K. Cinea Feb. 28, 2018 Depo. Tr. at 264:11 – 265:14). 130 Ex. 71.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19718 Page 29 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 23 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the Court’s 2017 Sanctions Order further questioning the NSCA’s preservation efforts.131
The NSCA also failed to take any meaningful back-end steps to prevent users
from deleting ESI after the lawsuit was filed.132 For example, the NSCA could
have
.133 The NSCA also should have
.134 United States v. Kitsap Physicians Serv., 314
F.3d 995, 1001 (9th Cir. 2002) (finding routine destruction constitutes spoliation
where party “had ‘some notice that the documents were potentially relevant’ to the
litigation before they were destroyed”) (citation omitted).
Instead,
.135 Emphasizing the
NSCA’s bad faith refusal to engage in basic preservation protocol, the forensic
evaluation revealed that after inception of this litigation, the NSCA’s Publication
Director himself tried to delete at least 1,251 documents related to CrossFit
131 Dkt. 176 at 9:9-10. 132 For example, the NSCA did not
. Ex. 1 (K. Cinea Feb. 28, 2018 Depo. Tr. at 296:4-6). Ex. 2 (W. Rivinius Feb. 27, 2018 Depo. Tr.) at 101:24 – 102:9; 106:14 – 106:2. Ex. 3 (showing that
). Haley Dec. ¶¶ 6-15. Ex. 2 (W. Rivinius Feb. 27, 2018 Depo. Tr.) at 83:3-5. Haley Dec. ¶¶ 11-13.
Inexplicably, the NSCA
Ex. 2 (W. Rivinius Feb. 27, 2018 Depo. Tr.) at 102:6 –
103:9. Ex. 3 (showing that )).
Ex. 2 (W. Rivinius Feb. 27, 2018 Depo. Tr. at 102:21-106:21 (noting that
). Ex. 1 (K. Cinea Feb. 28, 2018 Depo. Tr. at 267:10-17; 268:8-15; 270:6-21;
273:23-275:4).
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19719 Page 30 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 24 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and/or the Devor Article,136 contradicting his numerous declarations reaffirming the
NSCA’s preservation efforts. There can be no dispute that the NSCA failed to take
reasonable steps to preserve the now-lost ESI.
3. The NSCA Acted with Intent to Deprive CrossFit of the Information in this Litigation
Under Rule 37(e)(2), terminating sanctions are appropriate upon a finding
that the offending party “acted with intent” to deprive another party of the
information’s use in the litigation. “[C]ourts have found that a party’s conduct
satisfies Rule 37(e)(2)’s intent requirement when the evidence shows or it is
reasonable to infer, that . . . a party purposefully destroyed evidence to avoid its
litigation obligations.” Porter v. City & Cty. of San Francisco, No. 16-cv-03771-
CW (DMR), 2018 U.S. Dist. LEXIS 151349, at *8, 2018 U.S. Dist. WL 4215602,
at *3 (N.D. Cal. Sept. 5, 2018) (emphasis added).
In Roadrunner Transp. Servs. v. Tarwater, the Ninth Circuit affirmed the
district court’s finding that the defendant “acted with the intent to deprive” when he
deleted emails and files from laptops despite receiving multiple preservation
demands and warnings from the trial court. 642 Fed. Appx. 759, 760 n.1, 2016
U.S. App. LEXIS 4999, 2016 U.S. App. WL 1073104 (9th Cir. Mar. 18, 2016). See
also Ottoson v. SMBC Leasing & Fin., Inc., 268 F. Supp. 3d 570, 582 (S.D.N.Y.
2017) (finding plaintiff's conduct was intentional under Rule 37(e) where she either
purposefully deleted e-mails showing she fabricated the existence of critical
evidence or purposefully failed to take any steps to preserve the e-mails).
Here, the NSCA purposefully deleted documents containing critical evidence
and failed to take any steps to preserve 200 lost devices and 196 irrecoverable
documents.137 Further, over 33,000 responsive documents were moved to deleted
items folders during the pendency of this lawsuit.138 This attempted spoliation
136 Haley Dec. at ¶ 25. 137 Dkt. 319-3; Nahama Dec. ¶ 4; Ex. 4; Haley Dec. ¶ 32. 138 Haley Dec. at ¶ 24.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19720 Page 31 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 25 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
confirms that the NSCA intended to thwart CrossFit’s ability to conduct full fact
and expert discovery. Cat3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488, 498
(S.D.N.Y. 2016) (“[A]ttempted destruction of authentic, competing information
threatens the integrity of judicial proceedings even if the authentic evidence is not
successfully deleted.”).
4. CrossFit is Not Required to Prove Prejudice
Finally, CrossFit is not required to prove prejudice from the lost ESI because
harm is presumed:
Subdivision (e)(2) does not include a requirement that the court find prejudice to the party deprived of the information. This is because the finding of intent required by the subdivision can support not only an inference that the lost information was unfavorable to the party that intentionally destroyed it, but also an inference that the opposing party was prejudiced by the loss of information that would have favored its position. Subdivision (e)(2) does not require any further finding of prejudice.
Committee Notes on Rule 37 (2015 Amendment). See also First Fin. Sec., Inc. v.
Freedom Equity Grp., LLC, No. 15-cv-1893-HRL, 2016 U.S. Dist. LEXIS 140087,
at *10, 2016 U.S. Dist. WL 5870218, at *3 (N.D. Cal. Oct. 7, 2016) (“[S]poliation
of evidence raises a presumption that the destroyed evidence goes to the merits of
the case[] and . . . that such evidence was adverse to the party that destroyed it.”).
Although CrossFit need not prove prejudice, there are obvious evidentiary
gaps that likely would have been filled by the lost ESI, including:
Communications to and from the Kraemers. Because ESI from
the Kraemers’ NSCA-owned devices were “factory reset” and/or withheld from
the forensic evaluation, CrossFit has been deprived of key evidence illustrating
the full scope of NSCA’s corrupt peer-review practices. The Kraemers’ lost
devices are particularly important in light of evidence that Dr. Kraemer either
outright fabricated the peer review process for the Hak Study by drafting the
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19721 Page 32 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 26 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
peer review comments himself,139 or communicated with the Hak Study’s peer
reviewers outside of the EMS system.140 In either scenario, the ESI on the
Kraemers’ withheld or factory-reset devices is central to CrossFit’s ability to
prove the NSCA’s liability for unfair competition and trade libel, and its request
for damages, including punitive damages. This alone justifies termination.
NSCA Tracking of Devor Article’s Propagation. There are missing
documents related to the NSCA’s close tracking of the Devor Article’s
dissemination. For example, the NSCA received an average of 50-120
“Meltwater Buzz Reports” each month, which tracked the popularity of the
Devor Article.141 However, the NSCA only produced 28 reports for September
2015 (when the NSCA issued the misleading Erratum)—a key month during
which at least twice as many reports should have been generated.142 This
missing evidence could have quantified CrossFit’s damages as a result of the
NSCA’s knowledge and propagation of false information about CrossFit.
NSCA Communications with the Military to Harm CrossFit. Although
some documents reveal the NSCA’s false statements to the military regarding
CrossFit, numerous communications are missing.143 This missing evidence goes
directly to the NSCA’s liability for unfair competition and trade libel, and
prejudices CrossFit’s ability to prove the extent of its damages.
NSCA Efforts to Harm CrossFit Through Government Regulation. The
Coalition for the Registry of Exercise Professionals (“CREP”)144 produced
139 Morreim Dec. ¶¶ 63-74; Mahoney Dec. ¶¶ 12-18, 28-38. 140 Mahoney Dec. ¶¶ 12-18, 28-38 (no EMS records exist evidencing peer reviewer communications related to the Hak Study). 141 Haley Dec. ¶ 31. 142 Id. Nahama Dec. ¶ 76. 143 See Ex. 72 (NSCA discussing preparing marketing materials containing lies about CrossFit for an upcoming meeting with senior military decision makers). No further email communications or marketing materials were produced on the topic. Nahama Dec. at ¶ 77. 144 Dkt. 176 at 5:13-18 (describing concealed documents where NSCA admits to using CREP as a proxy to lobby for regulations harmful to CrossFit).
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19722 Page 33 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 27 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
documents showing that at least three NSCA executives were on CREP’s Board
of Directors and regularly received meeting minutes.145
.146 The NSCA never produced these documents, other
meeting minutes, or any other discussions with CREP, which would reveal the
full scope of the NSCA’s lobbying efforts designed to harm CrossFit.147
There are many more similar evidentiary gaps that could have supported CrossFit’s
theories of liability and damages, especially its request for punitive damages—this
is exactly why CrossFit is not required to prove prejudice and is entitled to the
presumption that the lost ESI was material to this litigation. Rule 37(e)(2)(A). See
also Waymo LLC v. Uber Techs., Inc., No. C 17-00939 WHA, 2018 U.S. Dist.
LEXIS 16020, at *58-59, 2018 U.S. Dist. WL 646701, at *17 (N.D. Cal. Jan. 29,
2018) (“Having frustrated its adversary’s attempts to mine these facts for damning
evidence, Uber cannot now evade spoliation by speculating that all of the lost
information was benign.”); Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th
Cir. 2002) (“Last-minute tender of documents does not cure the prejudice to
opponents nor does it restore to other litigants on a crowded docket the opportunity
to use the courts.”).
Because (i) ESI that should have been preserved in the anticipation or
conduct of litigation is lost and cannot be restored or replaced; (ii) the NSCA failed
to take reasonable steps to preserve the lost information; and (iii) the NSCA acted
145 Nahama Dec. at ¶ 78. 146 Ex. 73 at 7 (“
.”). Nahama Dec. at ¶ 78. If these documents were not irrecoverably deleted, they
should have been produced using any one of multiple search terms agreed upon in the Forensic Protocol, including “CREP.” Dkt. 319-2 at 33.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19723 Page 34 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 28 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
with the intent to deprive CrossFit of this information’s use in this litigation, Rule
37(e) authorizes this Court to presume that the lost information was unfavorable to
the NSCA and enter default judgment against it. Rule 37(e)(2)(A), (C).
B. The NSCA Failed to Provide Information Required by Rule 26(a) in Violation of Rule 37(c)
The NSCA’s failure to (i) identify all potential witnesses and sources of
relevant documents in its initial Rule 26(a) disclosures, and (ii) supplement148 its
initial disclosures with additional potential witnesses and documents, provides
additional justification for termination. See Rule 37(c)(1)(C) (permitting “other
appropriate sanctions,” including termination).
1. Despite Multiple Opportunities, the NSCA Failed to Identify Relevant Custodians
In its Rule 26(a) disclosures, the NSCA identified only three representatives
as potential witnesses: JSCR Editor-in-Chief Dr. Kraemer, JSCR Managing Editor
Joan Kraemer, and Publications Director Cinea.149 The other five witnesses
identified were the Devor Article authors and the Devor Article’s Senior Associate
Editor Triplett.150 Nearly five years later and after CrossFit’s persistence, the
NSCA identified 160 individuals with discoverable information—though the NSCA
still has not provided a final list of potential witnesses.151 Tellingly, many of the
concealed custodians were individuals who—through the nature of their positions
within the NSCA’s executive team, marketing department, publications department,
etc.—would have direct knowledge of the NSCA’s efforts to manipulate the
scientific and peer-review processes into a marketing campaign to harm CrossFit.
Given the staggering number of undisclosed potential witnesses and the centrality
of their knowledge to this case, the NSCA cannot credibly claim that it complied
148 Rule 26(e)(1). 149 Ex. 74 at ¶¶ 1, 2, 4. 150 Id. at ¶¶ 3, 5. 151 Ex. 28 at 5:21-6:28.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19724 Page 35 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 29 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
with its discovery obligations.
2. Termination Pursuant to Rule 37(c) is Appropriate in Light of the NSCA’s Willful and Bad Faith Conduct
“District courts have ‘particularly wide latitude’ to issue sanctions under
Rule 37(c)(1).” Sanders v. Matthew, No. 1:15-cv-00395-LJO-EPG, 2018 U.S. Dist.
LEXIS 49672, at *13, 2018 U.S. Dist. WL 1470473, at *5 (E.D. Cal. Mar. 26,
2018) (citation omitted). The NSCA’s disregard of its Rule 26 obligations has
caused significant prejudice to CrossFit, and can only be described as bad faith—
either willful withholding of information or reckless failure to include the full scope
of evidence and witnesses. Tablizo v. City of Las Vegas, 720 F. App’x 875, 876-77
(9th Cir. 2018) (“implicitly recogniz[ing] this requirement that the district court
must make a finding of willfulness, fault, or bad faith when a Rule 37(c)(1)
sanction results in dismissal of a cause of action”).
There is no excuse for the NSCA’s failure to disclose over 150 witnesses.
The NSCA was ordered to submit an initial declaration regarding its discovery and
disclosure practices in July 2015.152 The NSCA’s discovery failures were expressly
identified and highlighted when CrossFit filed its first sanctions motion in February
2017.153 The 2017 Sanctions Order should have served as a loud wakeup call to the
NSCA. Instead, the NSCA continued to ignore its discovery obligations despite the
Court’s warning that it had ample basis to terminate in 2017. Termination pursuant
to Rule 37(c) is appropriate here in light of the NSCA’s willful bad faith conduct
even in the face of those warnings.
C. The NSCA Failed to Comply with Multiple Discovery Orders in Violation of Rule 37(b)
Rule 37(b)(2)(A)(vi) authorizes this Court to enter default judgment against a
party that fails to comply with a discovery order. The NSCA has failed to comply
with multiple discovery orders throughout this matter, including (i) the Court’s
152 Dkt. 59 at 9:9-28. 153 Dkt. 150.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19725 Page 36 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 30 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2015 Discovery Order, ordering the NSCA’s full and complete document
production; (ii) the Court’s 2017 Sanctions Order, requiring the NSCA to file
declarations of compliance; and (iii) the Court’s October 2018 Scheduling Order,
requiring the NSCA to complete production of documents by January 2, 2019.
First, the Court’s 2015 Discovery Order required the NSCA to identify: (i) all
responsive documents; (ii) why the NSCA believed the processes used to locate and
produce responsive documents were reasonable; (iii) its retention policies and/or
practices; and (iv) “any apparent gaps [in the production] and whether such gaps
could be the result of deletions by key custodians in the normal course prior to the
time litigation was anticipated.”154 The NSCA failed to comply with this order.
Prior to the 2017 Sanctions Order, the NSCA produced 439 documents.155 The
forensic evaluation identified over 279,000 responsive but unproduced documents,
after custodian de-duplication.156 The total number of concealed documents based
on all custodians is over 1.3 million presumptively relevant documents—each of
which represents an opportunity that the NSCA could have located and produced
those documents.157 This includes over 37,900 de-duplicated documents containing
key search terms such as “CrossFit” variations and “Devor” that the NSCA
repeatedly and falsely represented had already been collected.158 The following
chart159 illustrates the number of concealed documents that Stroz identified using
these key terms based on the document’s creation, last modified, or sent date:
2012 2013 2014 2015 2016 2017
CrossFit 1,748 2,342 5,098 6,193 5,506 7,065
Devor 31 37 322 217 263 594
154 Dkt 59 at 9:9-10:6. 155 Haley Dec. at ¶ 29; Nahama Dec. at ¶ 12. 156 Dkt. 319-2 at 16. 157 Id. at 15. 158 Haley Dec. ¶ 19. 159 Haley Dec. ¶ 20.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19726 Page 37 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 31 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The forensic evaluation reveals that before the 2017 Sanctions Order, the NSCA
had produced less than 0.2 percent of total responsive documents.160 This alone is
sufficient grounds for the Court to terminate. Conn. Gen. Life Ins. Co. v. New
Images of Beverly Hills, 482 F.3d 1091, 1095 (9th Cir. 2007) (upholding
termination for failure to fully comply with discovery order).
Second, the 2017 Sanctions Order required the NSCA to file declarations
from all relevant personnel “assuring or reaffirming that no documents relevant to
this litigation have been destroyed.”161 Not only did the NSCA omit multiple
“relevant NSCA personnel,” the forensic evaluation discovered that the NSCA
compliance declarants who swore they had not deleted anything, in fact deleted
7,900 documents—1,500 of which contained either “CrossFit” or “Devor.”162
Equally telling, the NSCA Publications Director, who oversaw all the
NSCA’s document productions, claimed that he personally ran searches for key
terms, repeatedly (falsely) claimed no documents were deleted, and told the Court
that he stands behind his and the NSCA’s inadequate collection efforts.163 The
following chart illustrates the number of documents containing the search term
“CrossFit” or a variation thereof that Mr. Cinea possessed and that was either
concealed by Mr. Cinea, recovered by Stroz in Mr. Cinea’s “deleted items” folder,
or located by Stroz through another custodian:164
2012 2013 2014 2015 2016 2017 2018
Concealed Documents 23 81 536 1,442 882 864
Deleted but Recovered 1 14 164 682 352 321
Permanently Deleted by Cinea but Recovered from Another Custodian
181 154 480 453 355 562 116
160 Haley Dec. ¶ 29; Nahama Dec. at ¶ 12. 161 Dkt. 176 at 10:24-27. 162 Haley Dec. ¶ 25. 163 Dkt. 178 at ¶¶ 1-4; Dkt. 189-3 at ¶¶ 1-6. 164 Haley Dec. ¶ 28.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19727 Page 38 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 32 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Instead of identifying these deletion efforts in the NSCA’s sanctions-compliance
declarations,165 the NSCA submitted perjurious declarations claiming no documents
were deleted.166 The evidence plainly shows that at least 12 (out of 14 total)
declarants failed to preserve ESI, failed to conduct complete searches of responsive
documents, and attempted to delete (or successfully deleted) thousands of
responsive documents.167 These findings also prove the NSCA Publication
Director’s previous declarations to this Court feigning discovery compliance
contained material lies.168 The NSCA’s perjurious compliance declarations are
independently sufficient grounds to terminate this case. Lee v. Max Int'l, LLC,
638 F.3d 1318, 1322 (10th Cir. 2011) (affirming trial court’s dismissal of case
where plaintiffs filed perjurious declarations of production compliance).
Third, the NSCA has repeatedly failed to comply with multiple scheduling
orders—most recently, the Court’s October 19, 2018 Order. Dreith v. Nu Image,
Inc., 648 F.3d 779, 787 (9th Cir. 2011) (“Violations of a scheduling order may
result in sanctions, including dismissal under Rule 37(b)(2)(C).”). The October
2018 Order required the NSCA to “complete document review, serve privilege logs,
and turn documents over to CrossFit” by January 2, 2019.169 Between January 2,
2019, and the date of filing, the NSCA has belatedly produced over 69,400
documents; 19,500 privilege log entries; and 260,400 “non-responsive log”
entries.170 Indeed the NSCA’s most recent productions on May 16, 2019, and June
14, 2019, totaled 82 documents consisting of 3,120 pages.171
Not only did the NSCA fail to meet the Court-ordered deadline, the NSCA
continues to insulate its research and discovery misconduct from disclosure by
165 Dkt. 176 at 10:24-27. 166 Dkt. 178, 189, 190. 167 Haley Dec. ¶ 25. 168 Dkt. 178 at ¶¶ 1-4; Dkt. 189-3 at ¶¶ 1-6. 169 Dkt. 302 at 26:7-8. 170 Nahama Dec. at ¶ 80; Haley Dec. at ¶ 34. 171 Id.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19728 Page 39 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 33 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
repeatedly designating the most incriminating withheld documents as Confidential
or “Attorney’s Eyes Only” under the Protective Order. To date, in response to
CrossFit’s 6,184 designation challenges, the NSCA lowered designations on
6,157—99.6% of its confidentiality designations.172 This nefarious tactic allowed
the NSCA to hide from public scrutiny while significantly inflating CrossFit’s costs
by forcing CrossFit to file hundreds of documents under seal.173 The NSCA also
continues to withhold responsive documents based on privilege assertions and
“non-responsiveness” objections.174 Toth v. Trans World Airlines, Inc., 862 F.2d
1381, 1385 (9th Cir. 1988) (upholding dismissal sanctions based on “substantial
evidence of long and unjustified delays in responding to discovery requests and
noncompliance with judicial orders”); G-K Props. v. Redev. Agency of City of San
Jose, 577 F.2d 645, 647 (9th Cir. 1978) (upholding dismissal sanctions for failing
to produce court-ordered documents).
In sum, the record confirms the NSCA had no intention of producing
responsive documents, regardless of the Court’s lesser sanctions or CrossFit’s
efforts. Termination of this case is therefore necessary and appropriate under Rule
37(b)(2)(A)(vi) due to the NSCA’s violation of the Court’s 2015 Discovery Order,
2017 Sanctions Order, and October 2018 Scheduling Order. The NSCA should not
be given another opportunity to cure its inexcusable production deficiencies.
IV. TERMINATION PURSUANT TO THE COURT’S INHERENT POWERS IS APPROPRIATE IN LIGHT OF THE SCOPE OF THE NSCA’S INTENTIONAL DISCOVERY MISCONDUCT
The Court has the inherent power to “fashion an appropriate sanction for
conduct which abuses the judicial process,” including “outright dismissal of a
lawsuit.” Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991). Thompson, 782
172 Haley Dec. at ¶ 33. 173 CrossFit respectfully requests that the Court strike the NSCA’s confidentiality designations on all documents produced through the forensic evaluation that support the present motion. 174 Ex. 75.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19729 Page 40 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 34 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
F.2d at 831 (stating that courts have inherent power to “impose sanctions including,
where appropriate, default or dismissal”). Termination is available “when a party
has willfully deceived the court and engaged in conduct utterly inconsistent with the
orderly administration of justice.” Am. Rena Int’l Corp. v. Sis-Joyce Int’l Co., Ltd.,
No. CV 12-6972 FMO (JEMx), 2015 U.S. Dist. LEXIS 189271, at *15, 2015 U.S.
Dist. WL 12732433, at *5 (C.D. Cal. Dec. 14, 2015) (quoting Fjelstad v. Am. Honda
Motor Co., Inc., 762 F.2d 1334, 1338 (9th Cir. 1985)).
A. The Five Ninth Circuit Factors Weigh Heavily in Favor of Termination
Ninth Circuit courts consider five factors before imposing terminating
sanctions: “(1) the public’s interest in the expeditious resolution of litigation;
(2) the court’s need to manage its docket; (3) the risk of prejudice to [plaintiff];
(4) the public policy favoring disposition of cases on their merits; and (5) the
availability of less drastic sanctions.” Thompson, 782 F.2d at 831. In the 2017
Sanctions Order, the Court declined to terminate because—at that time—it was
possible that lesser sanctions could deter further NSCA misconduct and it was not
yet apparent that the NSCA had “actually destroyed evidence.”175 Now, there is no
question that all five factors weigh heavily in favor of termination.
1. Public Interest in Speedy Resolution and Case Management Concerns Favor Termination
As to the first two factors, the 2017 Sanctions Order concluded that the
public’s interest in expeditious resolution of litigation and the Court’s management
of its docket both weigh in favor of termination.176 Over two years later, even more
time and resources—including that of this Court, the Magistrate Judge, and the
Court’s neutral forensic evaluator—have been devoted to unraveling the NSCA’s
web of misrepresentations, concealment, and spoliation. The first two factors now
weigh even more heavily in favor of termination.
175 Dkt. 176 at 10:10-13. 176 Dkt. 176 at 8:25-9:5.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19730 Page 41 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 35 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2. Prejudice to CrossFit Weighs in Favor of Termination
The third factor is the risk of prejudice to the party seeking sanctions. The
Ninth Circuit has held that “[f]ailure to produce documents as ordered . . . is
considered sufficient prejudice.” Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406,
1412 (9th Cir. 1990). In its 2017 Sanctions Order, the Court noted that this factor
only weighed slightly in favor of termination.177 At that time, the scope of the
NSCA’s concealment or destruction was unclear.178
Now, there is no question that the NSCA’s extensive and pervasive evidence
spoliation has interfered with the rightful decision of this case. Conn. Gen. Life
Ins., 482 F.3d at 1097 (“What is most critical for case-dispositive sanctions,
regarding risk of prejudice and of less drastic sanctions, is whether the discovery
violations ‘threaten to interfere with the rightful decision of the case.’”) (citing
Valley Eng’rs v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998)). CrossFit
has been severely prejudiced in at least two aspects of litigation that materially
affect its ability to prosecute its claims.
a. CrossFit’s damages strategy and retention of damages experts have been prejudiced by the NSCA’s concealment and destruction of evidence
First, Stroz’s unveiling of over 279,000 concealed documents (summarized
in Section II.C., supra)—proving that NSCA leadership intentionally sought,
created or coerced, and then published manufactured “science” falsely framing
CrossFit training as unsafe to benefit the NSCA—has significantly altered
CrossFit’s damages litigation strategy, including its identification and retention of
appropriate damages experts.179 These concealed documents establish that the
NSCA’s Rule 26 disclosures, written discovery responses, compliance declarations,
and deposition testimony were all—at best—materially deficient, and—most
177 Dkt. 176 at 9:5-13. 178 Dkt. 186-1 at 4:28-5:5 (NSCA claiming that the 2017 Sanctions Order was too harsh because “only [] 70 individual documents were not produced.”). 179 Nahama Dec. at ¶¶ 82-83.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19731 Page 42 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 36 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
likely—outright false. Likewise, CrossFit was deprived of the opportunity to
designate appropriate experts and provide its existing experts with all relevant
documents supporting CrossFit’s damages claims.180
b. The NSCA’s five-year delay in producing documents has severely prejudiced CrossFit
Second, the NSCA’s belated production of documents does not cure CrossFit’s
prejudice. Valley Eng'rs, 158 F.3d at 1054 (upholding termination of case even
after key withheld document was produced: “Where a party so damages the
integrity of the discovery process that there can never be assurance of proceeding
on the true facts, a case dispositive sanction may be appropriate.”); Fair Hous. of
Marin, 285 F.3d at 906 (“Last-minute tender of documents does not cure the
prejudice to opponents nor does it restore to other litigants on a crowded docket the
opportunity to use the courts.”).
The Ninth Circuit imposes a rebuttable presumption that unreasonable delay
causes injury. Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976). Here,
CrossFit was and remains prejudiced by the NSCA’s unreasonable five-year delay
through the loss of evidence and witnesses. As just one example, Dr. Kraemer
testified that he used an iPhone 6 between April 2015 and January 2018 to conduct
NSCA business,181 and that he “factory reset” that phone around January 2018—
during the forensic process, after the 2017 Sanctions Order, and after filing his
sanctions-compliance declaration.182 Stroz was unable to recover any data from the
“factory-reset” phone.183 Joan Kraemer further testified she would send each
“factory reset” phone directly to the NSCA’s Publications Director—the same
180 Id. Morreim Dec. at ¶¶ 5-8. 181 Ex. 76 at 133:10-134:1. 182 Id. at 122:8-14. Dkt. 189-5. 183 Dkt. 319-2 at 10 (“As of the date of this report, Stroz has not received data from Dr. Kraemer’s mobile devices. Additionally, based on statements made by Dr.Kraemer, data from previous mobile devices is no longer available as one device was lost and the remaining devices were reset to factory defaults (commonly referred to as ‘wiped’) without a backup or other preservation copy being made of the devices.”).
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19732 Page 43 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 37 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
individual who deleted thousands of material documents, oversaw the NSCA’s
discovery façades, and swore under oath that no documents had been deleted.184
This and other similar ESI losses are solely attributable to the NSCA’s intentional
destruction of evidence and willfully-blind preservation failures.
“The fact that this is an involved, complex case increases the prejudice from
the delay. Early preparation and participation are essential under such
circumstances.” Anderson, 542 F.2d at 525. CrossFit has been robbed of “early
preparation and participation” in this complex case and the NSCA’s tactical delays
resulted in the loss of evidence that CrossFit could have accurately collected more
than five years ago when this litigation commenced—and would have collected but
for the NSCA’s misconduct. Based on the NSCA’s spoliation uncovered by the
Court’s neutral forensic evaluator, the NSCA’s delays and misconduct have
significantly prejudiced CrossFit and warrant terminating sanctions.
3. Termination is Appropriate Because This Action Cannot Fairly Be Tried on the Merits
The fourth factor—the policy in favor of hearing cases on the merits—
generally weighs against termination, except where a party’s litigation misconduct
prevents an accurate and fair trial on the merits of the case. Hester v. Vision
Airlines, Inc., 687 F.3d 1162, 1170 (9th Cir. 2012). As this Court previously noted:
There is no point to a lawsuit, if it merely applies law to lies. True facts must be the foundation for any just result. Sometimes . . . a party’s discovery violations make it impossible for a court to be confident that the parties will ever have access to the true facts.185
By intentionally and/or negligently destroying ESI, concealing thousands of
responsive documents, committing perjury, and misleading the forensic evaluator,
the NSCA’s extensive spoliation has ensured that a fair trial on the merits is
impossible and that any further discovery by the NSCA would be futile and
184 Dkt. 315-3 at 83:20-22. 185 Dkt. 176 at 9:16-18 (quoting Valley Eng’rs, 158 F.3d at 1058).
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19733 Page 44 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 38 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
untrustworthy—all of which weighs heavily in favor of termination.
4. Termination is Appropriate Because Lesser Sanctions Have Only Increased the NSCA’s Discovery Misconduct
In its 2017 Sanctions Order, the Court concluded that the fifth factor—the
availability of less drastic sanctions—weighed slightly against termination “only
because all of Defendant’s misconduct was discovered in one moment, almost
immediately prior to the relevant pretrial deadlines.”186 The fifth factor includes
“whether the court has considered lesser sanctions, whether it tried them, and
whether it warned the recalcitrant party about the possibility of case-dispositive
sanctions.” Conn. Gen. Life Ins. Co., 482 F.3d at 1096.
The Court’s 2017 Sanctions Order satisfies all three sub-parts: the Court
considered and did issue lesser sanctions (including extensive issue, evidentiary, and
monetary sanctions, and the sanction of a neutral forensic evaluation) against the
NSCA187; and the Court warned the NSCA about the possibility of case-dispositive
sanctions.188 The Court further warned the NSCA of case-dispositive sanctions in its
October 2018 Order after the NSCA unsuccessfully attempted to disqualify Stroz.189
The Court’s lesser sanctions and repeated warnings have fallen on deaf ears.
The Court’s sanction of compliance declarations was met with NSCA perjury.190 Its
sanction of a forensic evaluation was met with the NSCA’s baseless challenges to the
evaluator’s impartiality, credibility, and rates.191 Issue and evidentiary sanctions
were met with the NSCA’s intentional destruction of evidence.192 While “the Court
had hoped that the looming threat of terminating sanctions would spur the NSCA to
take seriously its discovery obligations,”193 the NSCA’s misconduct only escalated
186 Dkt. 176 at 9:19-10:7. 187 Dkt. 176 at 11:21-14:2. 188 Id. at 11:1-5. 189 Dkt. 302 at 24:10-21. 190 See Section II.A.3., supra. 191 Dkt. 257. 192 Nahama Dec. at ¶ 80. See Section II.A.3., supra. 193 Dkt. 302 at 24:10-12.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19734 Page 45 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 39 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(as detailed in Section II.A., supra) and even Stroz’s attempts to encourage the
NSCA’s compliance failed. The NSCA has earned terminating sanctions.
B. To Sanction the NSCA’s Repeated and Ongoing Discovery Misconduct, the Court Should Strike the NSCA’s Answer and Enter Default Judgment in Favor of CrossFit
Because all five factors now weigh heavily in favor of termination, the Court
should strike the NSCA’s answer and enter default judgment against the NSCA.
NewPark Mall LLC v. CRGE NewPark Mall, LLC, No. 15-cv-0817-PJH, 2016 U.S.
Dist. LEXIS 23987, at *8, 2016 U.S. Dist. WL 742009, at *3 (N.D. Cal. Feb. 25,
2016) (“[E]ven though a defendant has appeared in the action, the court has the
power to strike the defendant's answer and render a default judgment as the ultimate
sanction for refusal to obey discovery orders.”); Dreith, 648 F.3d at 786 (“The
district court possessed the power to impose default as a sanction for the Companies’
discovery misconduct.”).
V. DUE TO THE NSCA’S SPOLIATION RELATED TO CROSSFIT’S DAMAGES, THE COURT SHOULD SANCTION THE NSCA BY PROHIBITING IT FROM OPPOSING CROSSFIT’S DAMAGES EVIDENCE SUBMITTED IN BRIEFING IN LIEU OF A HEARING
The NSCA’s concealment and spoliation prevents CrossFit from fairly
proving its damages without additional experts. To fairly address how the NSCA
has intentionally and repeatedly prejudiced CrossFit’s ability to prove its damages,
CrossFit requests that the Court issue evidentiary sanctions against the NSCA by
permitting CrossFit to submit its damages evidence, including new and additional
expert reports, through unopposed briefing in lieu of an evidentiary hearing.
A. The Court Should Prohibit the NSCA From Challenging CrossFit’s Damages Evidence and From Offering Any Evidence Disputing the Amount of CrossFit’s Damages
Pursuant to Rule 37(e), Rule 37(c), Rule 37(b), and the Court’s inherent
authority, the Court should issue an evidentiary sanction prohibiting the NSCA
from disputing the amount of CrossFit’s damages. In O’Connor v. Powell,
defendants repeatedly thwarted discovery of their assets. Case No. 99 C 6582,
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19735 Page 46 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 40 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2000 U.S. Dist. LEXIS 12483, 2000 U.S. Dist. WL 1230459 (N.D. Ill. Aug. 23,
2000). The court entered an order requiring defendants to produce a complete
accounting of its assets and to submit a corresponding compliance declaration.
Even after a two-month production extension, defendants disclosed minimal
records and invoked the Fifth Amendment in lieu of filing compliance declarations.
Records obtained through subpoena confirmed that defendants’ production was
wholly incomplete and inaccurate. Because defendants’ concealment of documents
prejudiced plaintiff’s ability to prove its damages, the court sanctioned defendants
by prohibiting them “from offering any evidence disputing liability or the amount
of damages.” Id. at *14 (emphasis added). “[S]uch a measure compensates
plaintiffs for the obstacles they have faced in discovery proceedings.” Id.
The NSCA’s obstruction is far more egregious than the misconduct detailed
in O’Connor. The forensic evaluation confirms that the NSCA intentionally
withheld and destroyed significant ESI in violation of multiple Court orders.194
Worse than invoking Fifth Amendment privilege, the NSCA affirmatively and
perjuriously declared that all responsive documents were produced and that no ESI
was destroyed.195 The NSCA’s spoliation has prevented CrossFit from proving its
full scope of damages stemming from the NSCA’s carefully-crafted marketing
campaign to weaponize manufactured “science” and harm CrossFit through content
published across all NSCA platforms extending far beyond the Devor Article.196
The NSCA’s damages-related spoliation was intentional and systemic for
over five years, and the NSCA should not be given an opportunity to further delay
or inflate the costs of CrossFit’s damages prove up. Such an evidentiary sanction is
warranted based upon the scope of the NSCA’s misconduct and its efforts to
conceal the same. O’Connor, 2000 LEXIS 12483, at *14.
194 See Sections II.A. and C., supra.195 Dkt. 178, 189, 190. 196 Nahama Dec. at ¶ 82.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19736 Page 47 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 41 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
B. The Court Should Permit CrossFit to Submit its Damages Evidence In Lieu of a Hearing, Including Reports from Additional Experts to Fairly Address CrossFit’s Damages Based Upon the Concealed Documents Revealing How, Where, and When the NSCA Spread Its Fabricated Research About CrossFit
CrossFit requests that the Court allow it to submit damages evidence through
briefing in lieu of an evidentiary hearing. Nutrition Distribut. LLC v. Chaos &
Pain, LLC, 2018 U.S. Dist. LEXIS 61748, at *6, 2018 U.S. Dist. WL 1744568, at
*2 (S.D. Cal. Apr. 10, 2018) (“When it is necessary for the plaintiff to prove
unliquidated or punitive damages, the court may require plaintiff to file declarations
or affidavits providing evidence for damages in lieu of a full evidentiary hearing.”).
Given the voluminous documents in this case, a full evidentiary hearing would be
inefficient and unreasonably burdensome on the Court and CrossFit. Instead,
CrossFit requests that it be allowed to brief legal arguments related to damages and
submit any corresponding evidence (including documents, declarations, and expert
reports) no later than 90 days after entry of the Court’s Order on the instant motion.
In conjunction with its submission of damages evidence, CrossFit should also
be permitted to rely upon new and additional expert witnesses. The forensic
evaluation unveiled thousands of previously-concealed and destroyed documents
that significantly impact CrossFit’s damages theory and its experts’ opinions, as
discussed in Sections II.A., II.C., and III.A.1.b., supra. For example, CrossFit
initially engaged a consumer behavior expert to create a market survey and opine
on an appropriate corrective advertising campaign based upon the then-known
exposure of a single article and upon the 439 then-produced documents.197
279,000 additional documents later—even before a full production is made—it is
clear that a market survey is an insufficient methodology to quantify CrossFit’s
damages due to the newly uncovered, multi-faceted marketing campaign by the
NSCA to promote fabricated research beyond the Devor Article.198
197 Dkt. 215-1 at 7:25-27; Dkt. 221 at 2:26-3:3. See also eMerge dec. at ¶ 29. 198 Nahama Dec. at ¶ 82.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19737 Page 48 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 42 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Perfectly illustrating that the 2017 Sanctions Order did not curb the NSCA’s
discovery misconduct, the NSCA intentionally leveraged its document concealment
to truncate CrossFit’s damages case and ambush CrossFit’s damages expert. Mere
weeks after the 2017 Sanctions Order, the NSCA provided its own consumer
behavior rebuttal expert with concealed documents tracking the spread of the
Devor Article and other fake research about CrossFit.199 In two June 21, 2017
emails200 titled, “Expert Testimony and the Issue of Damages,” the NSCA
provided its own damages expert with various analytics and spreadsheets
quantifying the spread of the Devor Article; for example: “1,506 views through
March 2016” on the JSCR website, and “the Devor article is the top viewed
article with 11,870 to date” on Ovid (the system that University Libraries use).201
The NSCA identified these documents as relevant to expert testimony and damages,
provided them to its own expert, but never voluntarily produced them to CrossFit.
Instead, on February 1, 2018, the NSCA submitted an expert declaration—
relying on these and other concealed documents—as part of its Motion to Amend
Scheduling Order to Allow Designation for Expert Witnesses.202 The documents
relied upon by the NSCA’s damages expert were produced to CrossFit only after
CrossFit reviewed the expert’s declaration and confronted the NSCA about missing
documents.203 This was eight months after the NSCA’s expert formed his opinions
and submitted his declaration relying on these documents,204 and over a year after
the 2017 Sanctions Order.
199 Ex. 77. See also Ex. 78 (June 21, 2017 email from NSCA counsel to Dr. Simonson attaching 5 spreadsheets containing “year by year stats for the Devor article in Ovid” from 2013 through 2017). 200 This date is significant because it was two days before the NSCA filed its Reconsideration Motion (Dkt. 186) representing to the Court that CrossFit was exaggerating the number of concealed documents. These arguments were a blatant lie given the thousands of concealed documents Stroz identified. 201 Ex. 77-78. 202 Dkt. 215-9. 203 Dkt. 221-1 at ¶¶ 5-20. 204 Dkt. 215-9.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19738 Page 49 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 43 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Equally flagrant, as described in Sections II.C. and III.A.1.b. above, the
NSCA concealed from CrossFit—and likely destroyed—troves of documents
revealing the depth and breadth of its marketing plan to coerce and strategically
promote its manufactured “research,”205 including the fake injury data in the Devor
Article. For example, the NSCA concealed that it directly emailed third parties
links to media promoting the fake injury data before and after the Erratum206;
promoted the injury data while undermining the “positive” findings in presentations
at NSCA national conferences207; and tracked the projected and actual reach of the
fake injury data through various concealed internal reports.208
CrossFit has engaged additional expert consultants who have already begun
their investigation and are expected to opine on the following topics:
Forensic accountant: identify and quantify the decline in CrossFit’s
revenue and financial benefit to the NSCA, as a result of the NSCA’s
deceitful marketing campaign revealed in the concealed documents
summarized in Section II.C., supra;
Marketing: identify the various avenues of deceptive marketing used by the
NSCA as revealed in the concealed documents, and evaluate their impact on
CrossFit; and
Corrective Advertising: identify the measures necessary to correct for the
NSCA’s sophisticated and extensive marketing campaign to weaponize
fabricated research through the JSCR, TSAC Report, NSCA
conferences/seminars, traditional media, and social media.209
Without the opinions of additional damages experts, CrossFit will be prejudiced
205 “Research” refers to the content in the Devor Article, Hak Study, and various TSAC Report articles claiming to contain peer-reviewed research that CrossFit training is unsafe. 206 Ex. 27, 79. 207 Ex. 35. 208 Ex. 20, 22, 45, 48. 209 Nahama Dec. at ¶ 83.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19739 Page 50 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 44 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
by—and the NSCA will benefit from—the NSCA’s concealment and destruction of
thousands of documents pertaining to damages.210 Therefore, CrossFit respectfully
requests that it be permitted to submit unopposed damages evidence, including
reports by new and additional expert witnesses, in lieu of an evidentiary hearing.
VI. SIGNIFICANT MONETARY SANCTIONS ARE ALSO NECESSARY TO RECTIFY THE PREJUDICE TO CROSSFIT
The NSCA’s misconduct warrants monetary sanctions under three
independent grounds. First, under Rule 37(b)(2)(C), the Court “must order the
disobedient party . . . to pay the reasonable expenses, including attorney’s fees,
caused by the failure [to obey an order to provide or permit discovery].” Under
Rule 37(c)(1)(A) the Court “may order payment of the reasonable expenses,
including attorney’s fees, caused by the failure [to provide full and complete
disclosures pursuant to Rule 26(a) or (e) or to supplement those disclosures].”
Second, Rule 26(g)(3) requires the Court to issue an “appropriate sanction” that
“may include an order to pay the reasonable expenses, including attorney’s fees.”
See, e.g., Rodman v. Safeway, 2016 U.S. Dist. LEXIS 137988, at *9-11, 2016 U.S.
Dist. WL 5791210, at *3-4 (N.D. Cal. Oct. 4, 2016) (granting 26(g)(3) attorney fees
sanctions and finding defendant’s discovery search “objectively unreasonable”
where counsel relied on an unexperienced individual who “received no meaningful
assistance [from counsel]; had no experience conducting such searches; and kept no
record of the searches he made”). Third, beyond these specific Rule-based
sanctions, the Court has the inherent power to issue monetary sanctions for
expenses and fees to redress abusive litigation and other bad-faith practices.
Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 648 (9th Cir. 1997)
(“Before awarding sanctions under its inherent powers, however, the court must
make an explicit finding that . . . conduct ‘constituted or was tantamount to bad
faith.’”). CrossFit seeks monetary sanctions for legal fees and expenses it incurred
210 Id.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19740 Page 51 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 45 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
for the following categories of work where the NSCA repeatedly tried to leverage
its evidence concealment and destruction.211
A. Pre-Sanctions Fees Incurred Due to the NSCA’s Intentionally Deficient Pre-Sanctions Discovery, Including Productions, Meet and Confer Efforts, Depositions, Written Discovery Responses, Expert Reports, Motions Practice, and Trial Preparation
Before the 2017 Sanctions Order, the NSCA only produced 439
documents—less than .02 percent of the relevant record produced through
Stroz.212 As discussed below, the NSCA issued its written discovery responses,
“prepared” its witnesses, opposed CrossFit’s motions, filed case-dispositive
motions, and caused CrossFit to prepare for trial on this grossly deficient record.
The NSCA should therefore be sanctioned for the following:
1. Fees for CrossFit’s Motions for Summary Judgments:
$485,846.03. CrossFit twice sought summary judgment on the issue of injury-data
falsity213 while the NSCA, in bad faith, concealed documents revealing (i) the
corrupt peer-review process to manufacture the false injury data214 to “arm” the
NSCA “with scientific rationale as to the weaknesses of Crossfit”215; (ii) the
NSCA’s propagation of media articles about the fake injury data216; and (iii) the
NSCA’s knowledge—as early as January 2015—of the “injured” participants
declarations.217 The NSCA’s concealment of documents showing its approval and
manipulation of the editorial process for the Devor Article significantly increased
211 Evidentiary support for CrossFit’s monetary sanctions request can be found in the declarations of Wynter L. Deagle, Alison A. Grounds, Micha Danzig, William O. Reckler, and exhibits attached thereto. Privileged information in these declarations and supporting exhibits have been redacted. CrossFit has submitted unredacted, privileged entries for the Court’s in camera review so that the Court may fully assess the bases for and reasonableness of CrossFit’s monetary sanctions requests. CrossFit’s request does not include fees related to standard litigation conduct, such as document review to prove up its claims. See, e.g., Reckler Dec. at ¶ 23; Danzig Dec. at ¶ 44; Grounds Dec. at ¶ 26; Deagle Dec. at ¶ 30. 212 Haley Dec. at ¶ 29; Nahama Dec. at ¶ 12. 213 Dkt. 38, 74. 214 See, e.g., Morreim Dec. at ¶¶ 55-68. 215 Dkt. 311-7 at 31 (¶10). 216 See, e.g., Ex. 17-18. 217 See, e.g., Ex. 63.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19741 Page 52 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 46 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the legal work necessary to prevail on CrossFit’s motions and hampered CrossFit’s
ability to meaningfully prove this element of its claims.218
2. Fees Related to CrossFit’s Motions to Compel: $325,359.16. In its
arguments opposing two joint motions to compel the identities of the Devor Article
peer reviewers, the NSCA stood behind the purported academic integrity of its peer
review process and deceived the Magistrate Judge into believing that CrossFit’s
claims of academic corruption were “wholly speculative”219—all while actively
concealing thousands of documents that revealed systemic corruption across all
NSCA peer-reviewed publications, the NSCA Board of Director’s efforts to cover
up this corruption, evidence revealing Devor Article Peer Reviewer #1’s extensive
ties to the NSCA, and the NSCA’s fabrication of the peer-review process for the
Hak Study.220 This evidence—along with the NSCA leveraging the Magistrate
Judge’s analysis on a deficient record—was presented to the State Action
Discovery Referee and Court, which led to an order detailing the NSCA’s corrupt
practices and compelling disclosure of the peer reviewers’ identities.221
CrossFit’s other motions to compel—addressing such issues as the NSCA’s
improper confidentiality designations, revenue projections, and contracts with the
JSCR publisher—were likewise hindered as they were presented without the full
scope of the NSCA’s efforts to smear CrossFit’s reputation and to quell
competition.222 The NSCA should be sanctioned for its deceitful conduct, which
necessitated the filing of these motions to compel.
3. Fees Related to the NSCA’s Motion for Summary Judgment:
$129,651.58. The NSCA sought summary judgment claiming the First Amendment
protected the NSCA’s false statements about CrossFit because the NSCA does not
218 Reckler Dec. at ¶ 17; Danzig Dec. at ¶ 34. 219 Dkt. 57 at 14:10-12. 220 Nahama Dec at ¶ 32; Morreim Dec. at ¶¶ 55-68; Mahoney Dec. ¶¶ 12-18, 28-38. 221 Request for Judicial Notice in support of the Renewed Motion at ¶¶ 1-3. 222 See, e.g., Dkt. 25, 30, 70.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19742 Page 53 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 47 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
compete commercially with CrossFit.223 The NSCA concealed thousands of
documents directly related to the NSCA’s commercial motives to coerce, publish,
and promote fake research about CrossFit training.224 The NSCA’s motion would
have been dead on arrival if the concealed documents had been produced.
4. Fees Related to the NSCA’s Motion to Reopen Expert Discovery:
$106,290.50.225 The NSCA sought leave to retain a rebuttal damages expert (Dr.
Itamar Simonson) while (i) withholding 279,554 responsive documents,226 (ii)
arming Dr. Simonson with concealed documents directly impacting CrossFit’s
damages, and (iii) exploiting the concealed documents for Dr. Simonson’s rebuttal
report.227 The NSCA’s motion for a rebuttal damages expert deceitfully consumed
the Court’s and CrossFit’s time and resources.
5. Fees Related to Pre-Sanctions Depositions of NSCA Witnesses:
$603,859.11. CrossFit’s depositions of NSCA witnesses before the 2017 Sanctions
Order were incomplete and inaccurate due to the NSCA’s evidence concealment
and destruction.228 Tellingly, the NSCA’s 30(b)(6) representatives also
successfully concealed all evidence revealed in the withheld documents, such as the
NSCA’s scientific misconduct and broad marketing campaign to harm CrossFit.229
6. Fees Related to CrossFit’s Experts: $219,685.52. CrossFit’s
experts’ opinions and depositions before the 2017 Sanctions Order were based on
the 439 then-produced documents, excluding key documents that go to the heart of
CrossFit’s damages, primarily the impact from the NSCA’s intentional spread of
223 Dkt. 102. 224 Dkt. 108. 225 Dkt. 215. 226 Dkt. 319-2 at 16. 227 See generally, discussion in Section V.B., supra. 228 Reckler Dec. at ¶ 21; Danzig Dec. at ¶ 38. 229 CrossFit also seeks monetary sanctions related to the NSCA’s 30(b)(6) depositions under Rule 30(d)(2): “The court may impose an appropriate sanction – including the reasonable expenses and attorney’s fees incurred by any party – on a person who impedes, delays, or frustrates the fair examination of the deponent.” Deagle Dec. at ¶ 24.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19743 Page 54 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 48 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
false statements about CrossFit. This is precisely why CrossFit must retain new
experts who can assess damages based on the newly uncovered documents.
7. Fees Related to NSCA Experts: $79,539.51. Similarly, CrossFit
was forced to depose the NSCA’s experts on an egregiously deficient record.230
8. Fees Related to Pre-Sanctions Trial Preparation: $486,956.66.
CrossFit was in the midst of trial preparation “and only weeks prior to several
pretrial deadlines” when it initially discovered the NSCA’s spoliation.231 In light of
the uncovered documents, all pre-trial efforts are now moot.232
B. Post-Sanctions Fees for the NSCA’s Defiance of the 2017 Sanctions Order, Depositions Revealing Systemic Evidence Spoliation and the NSCA’s Repeated Concealment of Material Information from the Forensic Evaluator
1. Fees Related to the NSCA’s Motion for Reconsideration of the
2017 Sanctions Order: $99,346.25. In its motion for reconsideration of the 2017
Sanctions Order, the NSCA claimed “only [] 70 individual documents were not
produced.”233 In reality, the NSCA was withholding 279,554 responsive documents
and had destroyed—or was in the process of destroying—thousands more.234
CrossFit requests monetary sanctions for being forced to oppose the NSCA’s
baseless Motion for Reconsideration.
2. Fees Related to the Forensic Evaluation: $203,060.68. Had the
NSCA taken the 2017 Sanctions Order seriously, the forensic evaluation should not
have been a time- and cost-intensive process for CrossFit. But as discussed in
Section II.A.4. above, the NSCA artificially inflated expenses by refusing to
disclose key information necessary to execute the forensic protocol. The NSCA’s
false representations to Stroz required CrossFit to closely scrutinize all information
230 See generally Section V.B., supra. Request for Judicial Notice in support of the Renewed Motion at ¶¶ 1-3. Deagle Dec. at ¶ 22. 231 Dkt. 176 at 19-20. 232 Danzig Dec. at ¶ 26. 233 See, e.g., Dkt. 186-1 at 4:28-5:5. 234 Dkt. 319-2 at 16.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19744 Page 55 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 49 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
provided by the NSCA—none of which would have been necessary but for the
NSCA’s ongoing misconduct.235 CrossFit seeks all expenses and fees, including
those of its e-discovery vendor, incurred to facilitate the NSCA’s compliance with
the 2017 Sanctions Order.236
3. Fees Related to NSCA Depositions on Evidence Preservation,
Collection, and Production: $211,885.87. The NSCA failed to prepare its
30(b)(6) representatives, which resulted in extensive meet and confer efforts and re-
opening both depositions.237 The NSCA has no excuse for failing to prepare these
witnesses, who were designated by the NSCA to oversee all NSCA pre-sanctions
discovery efforts.238 Further, CrossFit was forced to depose Dr. Kraemer and Joan
Kraemer after Stroz learned that they had failed to turn over their NSCA-owned
phones and had destroyed evidence with ratification from the NSCA’s
Publication Director and Executive Director.239 These depositions were also
necessary to identify the NSCA’s initial search and retrieval of materials.
4. Fees Related to NSCA’s Improper and Overly Broad
Confidentiality Designations: $67,666.37. Throughout this action, the NSCA has
improperly designated thousands of documents as either “Confidential” or
“Attorneys’ Eyes Only.”240 To date, the NSCA has lowered 99.6% of its
confidentiality designations.241 The NSCA appears to have overly designated its
documents to avoid public scrutiny and to significantly increase CrossFit’s costs by
forcing CrossFit to file hundreds of documents under seal.242
5. Fees Related to the Instant Renewed Motion for Terminating
235 Deagle Dec. at ¶ 15; see, e.g., Ex. 11. 236 Grounds Dec. at ¶¶ 2, 16-18; Deagle Dec. ¶ 15-16. 237 Nahama Dec. ¶ 71. CrossFit also seeks monetary sanctions related to the NSCA’s 30(b)(6) depositions under Rule 30(d)(2). 238 Ex. 71 (K. Cinea July 17, 2015 Depo. Tr. at 461:6-463:18). 239 See Section IV.A.2.b., supra. Dkt. 319-2 at 11. 240 Deagle Dec. at ¶ 28. 241 Haley Dec. at ¶ 33. 242 Deagle Dec. at ¶ 28.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19745 Page 56 of 57
TR
OU
TM
AN
SA
ND
ER
S L
LP
11
68
2E
L C
AM
INO
RE
AL
SU
ITE
40
0
SA
N D
IEG
O,
CA
92
13
0-2
09
2
38528541
- 50 - 3:14-CV-01191-JLS-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Sanctions: $441,609.65 plus additional fees. This complex motion was solely
necessitated by the NSCA’s deceitful and wholesale refusal to comply with its most
fundamental discovery obligations over the course of five years.
In sum, CrossFit seeks monetary sanctions in the amount of $3,460,756.89
plus any additional fees incurred after May 31, 2019, for work performed in
connection with this Motion. These fees relate directly to the NSCA’s malfeasance
and efforts to conceal its misconduct from the Court, Stroz, and CrossFit. In
addition to terminating the case, monetary sanctions are appropriate where the 2017
Sanctions Order plainly did little to correct the NSCA’s intentional abuse of the
discovery process to conceal the truth.
VII. CONCLUSION
CrossFit respectfully requests that the Court enter an order to: (i) terminate
this case pursuant to Rule 37(e), (c), and (b), and the Court’s inherent authority;
(ii) strike the NSCA’s Answer; (iii) enter default judgment against the NSCA;
(iv) grant CrossFit leave to submit, within 90 days of the Court’s order, unopposed
damages briefing and evidence—including new and additional expert reports—in
lieu of an evidentiary hearing; and (v) award CrossFit monetary sanctions.
Dated: June 20, 2019 TROUTMAN SANDERS LLP
By: s/ Justin S. Nahama Wynter L. Deagle Email: [email protected] Justin Nahama Email: [email protected] Matthew J. Hrutkay Email: [email protected] Christina Ding Email: [email protected]
Attorneys for Plaintiff CROSSFIT, INC.
Case 3:14-cv-01191-JLS-KSC Document 326-1 Filed 06/20/19 PageID.19746 Page 57 of 57