If you followed football in the 70’s and 80’s, you might remember Los Angeles Rams quarterback Vince Ferragamo, Tampa Bay Buccaneers running back Michael "Tony" Davis, or Dallas Cowboys tight end Billy Joe DuPree. And if you played video games within the last three decades, you probably know the Madden NFL franchise, a football video game series that stretches all the way back to the Commodore 64. Now those players and Electronic Arts, publisher of the Madden franchise, are facing off in court, as the athletes accuse EA of illicitly profiting off their likenesses.
But on this judicial gridiron, officials have called foul. Last month, U.S. Magistrate Judge Donna Ryu of the Northern District of California sanctioned the players for running outside the bounds of acceptable discovery behavior. Here’s how the play went down.
Former NFL Players Take on Fumble eDiscovery
The three plaintiffs’ collective NFL careers stretched from 1973, when DuPree replaced Mike Ditka on the Cowboys, to 1986, when Ferragamo left the Packers. By '86, Electronic Arts founder Trip Hawkins had already started working on the game that would become the Madden NFL franchise. (“Most of my friends would tell you I started EA as an excuse to make a football game,” Hawkins once said. “And there’s probably a fair amount of truth to that.”)
That franchise ended up being one of EA’s most successful video game series, selling more than 100 million copies and generating billions in revenue. With Madden, players can step into the digital cleats of their heroes (or, at least, their video game approximation) and guide them as they dominate and humiliate their opponents.
The game has even gained popularity among NFL players themselves, even informing their moves on the field. Yet not all players are fans. In July, 2010, Davis, Ferragamo, and DuPree filed a putative class action, Davis v. Electronic Arts, Inc., Docket No. 3:10-cv-03328 (N.D. Cal. Jul 29, 2010), against EA for allegedly violating their rights of publicity by including their likenesses in the “historic teams” available in the game.
Factual discovery concluded last July, after which Judge Richard Seeborg granted summary judgment on the players’ statutory misappropriation of likeness claims and allowed the case to proceed for five other claims. As the discovery process wound down, EA motioned to compel further responses from the players, a motion the court granted in part.
Apparently followers of the "three yards and a cloud of dust" offense, the players responded a day after the court-imposed deadline, stating that, after a reasonable search, they found no responsive documents. The players also produced a late-coming privilege log, blaming the log’s tardiness on “a computer problem that ‘rendered it unusable.’”
EA cried foul and moved for sanctions, citing a host of alleged deficiencies in the plaintiffs’ responses. Most significantly, EA argued that the players’ claims that no responsive documents existed was belied by their own deposition testimony and that their late responses to interrogatories and RFAs were deficient. EA asked for $45,000 in sanctions, citing Federal Rule of Civil Procedure 37, the court’s inherent authority, and local rules.
(A quick aside: It’s worthwhile noting that the court accepted both Rule 37 and its inherent authority as basis for the sanctions. While the sanctions requested here could fall squarely within Rule 37(b) and (c)'s grant of sanction authority with regard to failure to comply with court orders and failure to disclose, supplement, or admit evidence, the court also invoked its own, presumably more encompassing, inherent power to “manage [its] own affairs so as to achieve the orderly and expeditious disposition of cases.”)
There’s No Cheat Code in the Game of Discovery
The court agreed with EA in part, finding that the plaintiffs had failed to meet their discovery obligations by:
- Using evasive and improper responses to interrogatories, including repeating limitations that the court had already rejected;
- Failing to provide an estimate of the value of their names and likenesses, because they “have not yet completed their computation of the damages in this case”;
- Ignoring clarifications to requests for admissions in their responses;
- Rewriting RFAs to limit their scope, in violation of the court’s order;
- Failing to produce all responsive documents relating to earlier litigation.
EA had also requested all documents related to Madden NFL and the lawsuit that the players had sent to or received to other retired players.
In their responses, the plaintiffs asserted that there were no responsive documents, despite the plaintiffs’ counsel stating at an earlier hearing that “I believe there's regular communications between [the named Plaintiffs]... regarding the case.”
The players’ claim that no responsive communications existed was further undermined by Tony Davis’s earlier testimony that he regularly emailed other players about the lawsuit. In response to these inconsistencies, Judge Ryu writes:
The court ordered Plaintiffs' counsel to immediately contact his clients in writing and by telephone to communicate the court's order that they each "search thoroughly all . . . email, going all the way back, for communications between [Plaintiffs] and other people who are not lawyers about this case," and ordered counsel to confirm the completeness of the search.
Yet the players still asserted that no responsive documents existed.
With these shortcomings in mind, Magistrate Judge Ryu let the flags fly. Instead of a 15-yard penalty, she imposed a host of evidentiary sanctions, including:
- Precluding lay testimony on the value of the players’ names and likenesses;
- Limiting the plaintiffs’ property rights theory to the economic value of those names and likenesses alone;
- Prohibiting the players from introducing or relying on any documents not previously produced.
The court also awarded attorneys’ fees, though less than less than the $45,000 EA had requested.
Monetary sanctions were appropriate, the court explained, but limited to hours that were “reasonably expended” and not “excessive, redundant, or otherwise unnecessary.” Despite seeking only $45,000, EA had submitted records totaling $114,866.10 in attorneys’ fees, at hourly rates of $652.50 and $495. Two of the four timekeepers billed a total of $20,000 “for work on the sanctions motion alone,” the court noted.
The court noted that EA’s billing records “do not segregate the fees by task or category, which makes it difficult to evaluate the reasonableness of the time expended, or to calculate precise sums that should be allowed or disallowed.”
For example, if the time were broken out by category, the court would disallow time spent meeting and conferring prior to the filing of EA's July 2017 unilateral discovery briefs in which they moved to compel, because EA was required to meet and confer with Plaintiffs prior to moving to compel pursuant to Federal Rule of Civil Procedure 37(a)(1) and Local Rule 37-1(a). The court would also disallow time spent drafting the unilateral discovery briefs, because the court declined to rule on those motions before the parties had submitted joint letters on the same disputes.
(The takeaway here? When it comes to obtaining attorneys’ fees as sanctions in discovery, the more detailed your records, the better.)
Yet despite these imperfections, the court imposed $25,000 in sanctions, reasoning that the monetary and evidentiary sanctions combined were appropriate. Judge Seeborg rejected the players’ objections to the sanctions earlier this month, finding that “The magistrate judge’s careful explanation regarding the basis and amount of monetary sanctions is not subject to any finding of clear error.”
For practitioners, there are some lessons to be learned from this failed discovery play. First, that the refusal to respond promptly and fully to discovery requests, and particularly to court orders relating to those requests, can still result in significant sanctions. This case may not have involved the six-figure sanctions that make lawyers breakout in a cold sweat, but the evidentiary and monetary sanctions weren’t just a slap on the wrist.
This may not be the end of the discovery dispute, either. EA is now pursuing sanctions for spoliation, accusing the plaintiffs of deleting emails they were obligated to preserve.
This post was authored by Casey C. Sullivan, who leads education and awareness efforts at Logikcull. You can reach him at casey.sullivan@logikcull.com or on Twitter at @caseycsull.
