Defendant's Response To Motion To Compel

Case 2:15-cv-01045-RFB-PAL Document 409 Filed 05/24/17 Page 1 of 25
1 WILLIAM A. ISAACSON (Pro hac vice)

(wisaacson@bsfllp.com)
2 STACEY K. GRIGSBY (Pro hac vice)
(sgrigsby@bsfllp.com)
3 NICHOLAS WIDNELL (Pro hac vice)
(nwidnell@bsfllp.com)
4 BOIES SCHILLER FLEXNER LLP
1401 New York Avenue, NW
5 Washington, DC 20005
Tel: (202) 237-2727; Fax: (202) 237-6131
6
RICHARD J. POCKER #3568
7 (rpocker@bsfllp.com)
BOIES SCHILLER FLEXNER LLP
8 300 South Fourth Street, Suite 800
Las Vegas, Nevada 89101
9 Tel: (702) 382-7300; Fax: (702) 382-2755
10 DONALD J. CAMPBELL #1216

(djc@campbellandwilliams.com)
11 J. COLBY WILLIAMS #5549
(jcw@campbellandwilliams.com)
12 CAMPBELL & WILLIAMS
700 South 7th Street
13 Las Vegas, Nevada 89101
Tel: (702) 382-5222; Fax: (702) 382-0540
14
Attorneys for Defendant Zuffa, LLC, d/b/a
15 Ultimate Fighting Championship and UFC
16
17 UNITED STATES DISTRICT COURT
18 DISTRICT OF NEVADA
19 Cung Le, Nathan Mr. Quarry, Jon Fitch, Brandon No.: 2:15-cv-01045-RFB-(PAL)
Vera, Luis Javier Vazquez, and Kyle Kingsbury,
20 on behalf of themselves and all others similarly ZUFFA, LLCS OPPOSITION TO
situated, PLAINTIFFS MOTION TO
21 COMPEL DEFENDANT TO
Plaintiffs, PRODUCE A LOG OF
22 v. COMMUNICATIONS FOR DANA
WHITES DISCOVERABLE
23 Zuffa, LLC, d/b/a Ultimate Fighting TELEPHONE NUMBERS AND
Championship and UFC, ELECTRONIC
24 COMMUNICATION DEVICES
Defendant. AND DIRECTING DEFENDANT
25 TO SUBMIT AN INVENTORY OF
ELECTRONIC
26 COMMUNICATION DEVICES
(ECF No. 395)
27
28
ZUFFAS OPPN TO PLS MOT. TO COMPEL Case No.: 2:15-cv-01045-RFB-(PAL)

1 TABLE OF CONTENTS
2
I. INTRODUCTION ...............................................................................................................1
3
II. FACTUAL BACKGROUND..............................................................................................2
4 A. Zuffas Initial Steps To Preserve ESI In Response To This Lawsuit ......................2
5 B. The Collection Of Mr. Whites Cellular Phones And Attempts At Data
Extraction .................................................................................................................3
6 C. The Review And Production Of Extracted Text Messages .....................................4
7 D. Zuffas Ongoing Efforts To Preserve And Produce Relevant ESI ..........................5
E. Plaintiffs Complaints Regarding The Text Message Productions ..........................5
8
F. Zuffas Meet and Confer Efforts and Plaintiffs Decision to Abandon
9 Further Discussion and Conferral ............................................................................6
III. LEGAL STANDARD .........................................................................................................7
10
IV. ZUFFAS EFFORTS TO PRESERVE, COLLECT, AND PRODUCE MR.
11 WHITES TEXT MESSAGES COMPLY WITH THE FEDERAL RULES OF
CIVIL PROCEDURE AND THIS COURTS ESI ORDER...............................................8
12 A. Zuffas Preservation Of Documents And ESI Exceeded The Reasonableness
Standard....................................................................................................................8
13
1. Zuffa Has Produced ESI From The -92 Phones, Which Plaintiffs Have
14 Had Ample Opportunity To Inspect. ................................................................9
2. Zuffa Preserved The Nokia Phone (-20) In Accordance With The ESI
15 Order And Has Confirmed That The Handful Of Messages That Can
Be Extracted From That Phone Are Not Responsive. ....................................10
16
3. Zuffa Has Produced Text Messages From The -75 Phone And Will
17 Produce Messages That Have Been Recovered From The Phone. ................13
4. The -27 Phone Was Not A Business Phone, And Plaintiffs Have The
18 51 Responsive Text Messages From That Number........................................14
19 B. Plaintiffs Have Not Suffered Prejudice From Any Alleged Failure To
Produce Text Messages. .........................................................................................16
20 1. Text Message Exchanges Before The Litigation Commenced Cannot
Support Plaintiffs Claim That Zuffa Failed To Preserve ESI. ......................16
21
2. Zuffa Produced Text Message Exchanges From Other Custodians. ..............17
22 V. PLAINTIFFS ADVOCATE AN EXTREME STANDARD OF DISCOVERY
THAT UNDERSCORES THE REASONABLENESS OF ZUFFAS EFFORTS. ..........18
23
VI. PLAINTIFFS NEVER REQUESTED TO MEET AND CONFER ON MOST OF
24 THE SWEEPING RELIEF THEY NOW SEEK...............................................................19
VII. CONCLUSION .................................................................................................................21
25
26
27
28
i
1 TABLE OF AUTHORITIES
2
CASES
3
Elan Microelecs. Corp. v. Pixcir Microelecs. Co. Ltd.,
4 No. 2:10-cv-00014-GMN-PAL, 2013 WL 4499006 (D. Nev. Aug. 14, 2013) .............................. 20
5 In re Sulfuric Acid Antitrust Litig.,

231 F.R.D. 331 (N.D. Ill. 2005) ...................................................................................................... 10
6
Larsen v. Coldwell Banker Real Estate Corp.,
7 No. SACV 10-00401-AG, 2012 WL 359466 (C.D. Cal. Feb. 2, 2012) ..................................... 7, 17
8 Lenz v. Universal Music Corp.,

No. C07-03783 JF HRL, 2012 WL 699467 (N.D. Cal. Mar. 1, 2012) ............................................. 9
9
Rogers v. Brauer Law Offices, PLC,
10 No. CV-10-1693-PHX-LOA, 2011 WL 3665346 (D. Ariz. Aug. 22, 2011) .................................. 10
11 Rossetto v. Pabst Brewing Co.,

217 F.3d 539 (7th Cir. 2000) .......................................................................................................... 10
12
Schwartzmiller v. Wong,
13 No. C05-3066 JSW (PR), 2008 WL 685645 (N.D. Cal. Mar. 13, 2008)........................................ 11
14 Shinn v. Baxa Corp.,

No. 2:07-CV-01648-JCM, 2011 WL 2472663 (D. Nev. June 21, 2011) ......................................... 7
15
OTHER AUTHORITIES
16
The Sedona Conference,
17 The Sedona Principles: Best Practices Recommendations & Principles
for Addressing Electronic Document Production. Principle 7 (2d ed. 2007) ................................... 7
18
RULES
19
Federal Rules of Civil Procedure
20 Rule 26(b) ................................................................................................................................ passim
21 Federal Rules of Civil Procedure

Rule 37(a) ................................................................................................................................... 7, 19
22
Federal Rules of Civil Procedure
23 Rule 37(e) ......................................................................................................................................... 8
24 United States District Court, District of Nevada

Rule 26-7............................................................................................................................... 7, 19, 20
25
United States District Court, District of Nevada
26 Rule IA 1-3(f) ............................................................................................................................. 8, 19
27
28
ii
1 I. INTRODUCTION
2 Since December 18, 2014, when Zuffa, LLC (Zuffa) was served with this lawsuit, Zuffa
3 has made every effort to preserve relevant electronically stored information (ESI). The same day
4 Plaintiffs served Zuffa, it sent out a litigation hold letter. Within days, it investigated the possible
5 sources of relevant ESI. And within five weeks, counsel had collected ESI from numerous Zuffa
6 employees, including Zuffa President Dana White. Zuffa accomplished all of these tasks before
7 Plaintiffs served Zuffa with their first discovery request.
8 Like other Zuffa employees, Mr. White participated in this process. He received a litigation
9 hold notice in December 2014 and followed its instructions to preserve his ESI. When he realized in
10 January 2015 that his older-style flip phone would not save messages, he gave his phone to counsel.
11 Declaration of Dana F. White (White Decl.) 10-11. By January 8, 2015, he started using a
12 smartphone to send and receive business-related text messages. Id. 11. Mr. White understood the
13 obligation to preserve ESI and even stopped using a flip phone to assist Zuffa in saving his text
14 messages. Id.
15 Zuffa acknowledges that it has encountered difficulty collecting and producing 44,928 text
16 messages as part of the millions of pages it produced to Plaintiffs in this litigation. Such difficulties
17 are common during discovery in any complex litigation. In late March 2017, Plaintiffs sent a
18 message to Zuffas counsel criticizing the format of Zuffas July 2016 text message production and
19 followed up with another email posing four questions concerning the text message production. Pls
20 Mot. To Compel, Ex. 3, ECF No. 398. To correct technical issues, Zuffa re-produced all its text
21 messages. To address Plaintiffs questions about Mr. Whites devices, Zuffa began investigating to
22 confirm that it had located any possible cell phones Mr. White may have carried over several years.
23 When Plaintiffs stated that they needed assurance that they had received each and every responsive
24 message from Mr. White, Zuffa agreed to postpone Mr. Whites deposition. Despite all these
25 efforts, Plaintiffs have filed the instant motion seeking more.
26 Plaintiffs chide Zuffa for the length of time it has taken to investigate whether there is any
27 merit to Plaintiffs complaints. But Zuffa needed additional time to provide Plaintiffs with a
28 complete response to their seriatim emails and letters, while simultaneously preparing for and
1
1 participating in the eight depositions scheduled for the last month of fact discovery. Over just the
2 past two weeks, Zuffa located one of the devices that was the subject of Plaintiffs questions and
3 performed a forensic analysis on another device, which led to recovery of a comparatively small
4 number of additional and unremarkable text messages.
5 Zuffa has diligently produced voluminous discovery, including text messages, in this case
6 and has incurred costs that are disproportionate to the value of any additional text messages
7 Plaintiffs now hope to find. Instead of continuing to focus on resolving the discrete issue of Zuffas
8 text message production for Mr. White, which appears to affect fewer than 70 responsive text
9 messages, Plaintiffs filed a motion to compel. None of the perceived deficiencies in Zuffas text
10 message production justify Plaintiffs sweeping request for: (1) a communications log of all
11 Mr. Whites cell phone communications and (2) an inventory of all Zuffa custodians electronic
12 communications devices. Zuffas continued efforts to find and recover additional messages
13 addressed herein warrants the denial of Plaintiffs motion on the merits as moot.
14 II. FACTUAL BACKGROUND
15 A. Zuffas Initial Steps To Preserve ESI In Response To This Lawsuit
16 At the outset of this litigation, Zuffa moved swiftly to identify and preserve relevant ESI and
17 documents. On December 16, 2014, Plaintiffs filed this putative antitrust class action. ECF No. 1.
18 On December 18, 2014, the same day Zuffa was served with this lawsuit, Zuffas then-Chief Legal
19 Officer, Kirk Hendrick, sent a litigation hold and mandatory document preservation notice
20 (Mandatory Preservation Notice) to all Zuffa employees. Declaration of Stacey K. Grigsby
21 (Grigsby Decl.), 12 & Ex. B; Declaration of Marcy Norwood Lynch (Lynch Decl.) 4-5.
22 The Mandatory Preservation Notice instructed all Zuffa employees to retain and preserve all
23 documents and electronically stored information. Grigsby Decl., Ex B. Mr. White received a copy
24 of the Mandatory Preservation Notice. White Decl. 8; Lynch Decl. 6.
25 Zuffa rapidly developed a plan to preserve relevant ESI from potential custodians. Shortly
26 after issuing the Mandatory Preservation Notice to all Zuffa employees, Zuffa interviewed and
27 selected counsel. Lynch Decl. 8. Zuffa realized that some of its employees could have potentially
28 relevant information in text messages on their cellular telephones. For that reason, during the first
2
1 week of January 2015, Zuffa found and engaged an e-discovery vendor with expertise in extracting
2 and retaining text messages from cellular telephones. Id. 9. At the same time, Zuffa and its
3 counsel compiled a list of cellular phones used by potential document custodians to identify cellular
4 phones and other portable devices for preservation and collection of text message data and other
5 information. Id. 10. As part of that effort, Zuffa identified Mr. Whites Nokia 6101b flip phone
6 with a phone number ending in -20 (-20 Flip Phone) as a phone that was used for business-related
7 communications. Id. 16. Zuffa also identified an iPhone 4S smartphone with a phone number
8 ending in -92 that Mr. White used for business-related communications (the -92 iPhone 4). Id.
9 B. The Collection Of Mr. Whites Cellular Phones And Attempts At Data Extraction
10 Within days of identifying the -20 Flip Phone, Zuffa became aware that the phone had a
11 more limited memory and storage capacity than a newer smartphone. On January 8, 2015,
12 Mr. Hendrick instructed Mr. White to stop using the -20 Flip Phone in part because of the phones
13 limited memory and storage capacity. Id. 11; White Decl. 11. Mr. White voluntarily ceased
14 using the -20 Flip Phone, which was shut off, collected by Zuffa, and stored for preservation. Lynch
15 Decl. 12. Around the same time, Mr. White began using the -92 iPhone 4 as his cellular business
16 phone. White Decl. 11.
17 Zuffa did not wait for discovery to begin before it started to collect and extract text messages
18 for preservation. From late January to early February 2015, counsel for Zuffa interviewed and met
19 with Zuffa employees to collect and preserve cellular telephone data from potential and likely
20 custodians. Lynch Decl. 10, 14. Among the many phones Zuffa collected from custodians were
21 the -20 Flip Phone and the -92 iPhone 4 that Mr. White identified as the phones he used for business-
22 related communication. Id . 16.
23 On January 21, 2015, Zuffas e-discovery vendor attempted to extract data from Mr. Whites
24 -92 iPhone 4. Id . 17. The vendor successfully extracted and preserved the data on the -92 iPhone
25 4. Id. 18. Although the vendor made several attempts at extracting data from the -20 Flip Phone,
26 these efforts failed. Id. 20. After the initial unsuccessful attempts, the vendor informed counsel
27 for Zuffa that it was investigating additional non-forensic extraction options, including powering on
28 the phone and reading any saved text messages on the screen of the device itself, but warned that
3
1 there would be a meaningful risk of losing all prior data on the phone if it was powered on for this
2 purpose because the phone could begin to retrieve new messages that could overwrite older
3 messages. Id. For this reason, Zuffa elected to continue safely storing the phone and did not instruct
4 the vendor to make any non-forensic attempts at extracting text messages from the -20 Flip Phone.
5 Id. 21.
6 In February 2015, in anticipation of discovery, Zuffa and its counsel investigated retaining an
7 e-discovery vendor to perform all data collection and e-discovery services for this litigation. Id.
8 22. In approximately June 2015, Zuffa retained a second e-discovery vendor to collect and
9 preserve all data and prepare any subsequent productions. Id. 23. The second vendor also had
10 experience in forensic extractions, including extracting text messages from cellular phones. Id..
11 Between December 8, 2015 and February 22, 2016, following an agreement between Zuffa
12 and Plaintiffs regarding document custodians, Zuffa performed an updated collection of, among
13 other things, cellular phones. Id. 24. Prior to and during such collections, Zuffa compiled a list of
14 phones used by each custodian for Zuffa business-related communications. Id. 25. During the
15 compilation of this list, Zuffa learned that sometime in 2015, Mr. White had upgraded his -92 iPhone
16 4 to an iPhone 6 (the -92 iPhone 6). Id. Zuffa collected the -92 iPhone 6, and the second e-
17 discovery vendor preserved the data from this phone in addition to the -92 iPhone 4, which was no
18 longer in use. Id. 26, 27. During this updated collection, the new vendor once again attempted to
19 extract data from the -20 Flip Phone. Id. 28. Despite making forensic extraction attempts, the
20 messages from the -20 Flip Phone could not be retrieved. Id.
21 C. The Review And Production Of Extracted Text Messages
22 The text messages from Mr. Whites and other custodians phones were collected using
23 forensic collection software. Id. 29. As a result, a vendor needed to export the messages for
24 review in a readable format. Id. Because most of the extracted text messages consisted of personal,
25 non-Zuffa related messages, Zuffa had to review them for responsiveness, privilege, and personally-
26 identifiable information prior to production. Id. To permit Zuffa to extract responsive text
27 messages, the text messages were exported for review into Excel spreadsheets. Id. However, the
28 text messages were not natively stored as Excel spreadsheets on custodians phones or in the
4
1 forensic extraction tools. Id.
2 The review of text messages for responsiveness, privilege, and personally-identifiable
3 information required the work of eight attorneys. Id. 30. Following an extensive review of the text
4 messages, on July 8, 2016, Zuffa produced 44,928 text messages, over 6,800 of which were from
5 Mr. Whites -92 iPhone 4 and -92 iPhone 6. Id. 31, 33.
6 The Stipulated Order Re: Discovery of Electronically Stored Information (ESI Order)1,
7 ECF No. 160, does not specify the production format for text messages. Id. 32. Prior to Zuffas
8 text message production, Plaintiffs had previously produced text messages in TIFF format. Id.
9 Zuffa also produced the text messages in TIFF format, accompanied by extracted text and load files.
10 Id.
11 D. Zuffas Ongoing Efforts To Preserve And Produce Relevant ESI
12 Throughout this litigation, Zuffa has worked diligently and expended significant resources in
13 complying with Plaintiffs expansive discovery requests. As the litigation has progressed, Zuffa
14 augmented its initial litigation hold with updated litigation hold and mandatory preservations notices
15 issued to certain Zuffa employees in February 2015, October 2015, and August 2016. Lynch Decl.
16 7. To date, Zuffa has spent millions of dollars preserving, collecting, and producing documents to
17 Plaintiffs. Id. 42. As of today, Zuffa has produced over 650,000 documents, including 44,928 text
18 messages to Plaintiffs. Id. 41.
19 E. Plaintiffs Complaints Regarding The Text Message Productions
20 On March 20, 2017, more than eight months after Zuffas production of the text messages,
21 Patrick Madden, counsel for Plaintiffs, contacted Zuffas counsel regarding Plaintiffs perceived
22 issues with the production format of Zuffas text messages. Id. 34; Grigsby Decl., Ex. E. First,
23 Mr. Madden asked that Zuffa reproduce the text messages sorted as they were maintained on [cell
24 phone] devices. Id.; Pls Mot. to Compel, Ex. 9 at 1, ECF No. 397. Second, in a later e-mail that
25 day, Mr. Madden noted that one set of text messages was missing either To or From data, and
26 requested that Zuffa re-produce the document with fully populated data. Grigsby Decl., Ex. E;
27
1 The parties stipulation to the ESI Order was granted and the ESI Order was entered by Judge
28 Boulware. ECF No. 314.
5
1 Lynch Decl. 33. Zuffas counsel began investigating the issues raised in his e-mail, Lynch Decl.
2 34, and two days later responded to Mr. Madden to apprise him of Zuffas investigation. Id. A
3 little more than a week later, on March 29, 2017, a different attorney for Plaintiffs, Michael
4 DellAngelo, contacted counsel for Zuffa and raised additional questions regarding Zuffas
5 production of text messages. Id. 36. Among other issues, Plaintiffs identified text messages
6 between Mr. White and others that were not produced from Mr. Whites custodial files. Id. At that
7 time, Zuffa and its counsel were not aware that Mr. White had sent or received potentially business-
8 related text messages from phone numbers other than those associated with the -20 Flip Phone,
9 the -92 iPhone 4, and the -92 iPhone 6. Id. 37.
10 On April 4, 2017, counsel for Zuffa wrote to Plaintiffs counsel and stated that Zuffa would
11 re-reproduce all text messages previously produced on July 8, 2016. Id. 38. Counsel for Zuffa
12 also advised Plaintiffs that it needed time to examine the other issues he had raised. Id. Before
13 Zuffa completed its investigation, Plaintiffs counsel raised additional text message-related issues in
14 separate e-mails dated April 4 and April 13, as well as two April 14 e-mails. Id. 39.
15 On April 7, 2017, Zuffa re-produced all text messages it had previously produced on July 8,
16 2016. Id. 40. On April 25, 2017, Zuffa informed Plaintiffs that it had retrieved a cellular phone
17 with a phone number ending in -27 (the -27 Phone) and that it had sent that phone to a vendor to
18 extract potentially responsive text messages. Grigsby Decl. 11.
19 F. Zuffas Meet and Confer Efforts and Plaintiffs Decision to Abandon Further
Discussion and Conferral
20
21 To provide Plaintiffs information on the status of its investigation and extraction efforts,
22 counsel for Zuffa agreed to meet and confer with Plaintiffs counsel on April 26, 2017. Grigsby
23 Decl. 13. During this conference, Zuffas counsel told Plaintiffs counsel that Zuffa would
24 consider rescheduling Mr. Whites deposition even though Zuffa believed that the volume of
25 unproduced text messages from Mr. Whites phones would be small. Zuffas counsel also indicated
26 that it needed additional time to track down answers to the myriad issues Plaintiffs had recently
27 raised. Id. In that conference, the parties also discussed and reached a tentative agreement that
28 Plaintiffs would take Mr. Whites deposition roughly a week after receiving responsive text
6
1 messages. Id. Later that day, Zuffa confirmed its willingness to move Mr. Whites deposition. Id.
2 14.
3 On May 5, 2017, the parties engaged in a third meet and confer on the text message issues.
4 Id. 18. During this meet and confer, Zuffa offered to work cooperatively with Plaintiffs after the
5 completion of its investigation. Id. Instead of awaiting a response from Zuffa to Plaintiffs various
6 questions, Plaintiffs filed the instant motion on May 9, 2017, and finished serving Zuffa on May 10,
7 2017, just days before the then-scheduled hearing on Plaintiffs motion to extend the discovery
8 deadlines and status conference set for May 18, 2017.
9 III. LEGAL STANDARD
10 When a party moves to compel, it has the burden to show that the responding partys steps
11 to preserve and produce relevant electronically stored information were inadequate. Larsen v.
12 Coldwell Banker Real Estate Corp., No. SACV 10-00401-AG, 2012 WL 359466, at *7 (C.D. Cal.
13 Feb. 2, 2012) (citing The Sedona Conference, The Sedona Principles: Best Practices
14 Recommendations & Principles for Addressing Electronic Document Production. Principle 7 (2d ed.
15 2007)). The duty to preserve and produce information is not limitless When balancing the cost,
16 burden, and need for electronically stored information, courts and parties should apply the
17 proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) . . . , which require consideration of
18 the technological feasibility and realistic costs of preserving, retrieving, reviewing, and producing
19 electronically stored information, as well as the nature of the litigation and the amount in
20 controversy . . . . Id.
21 Pursuant to Rule 37(a)(2)(B), a party bringing a motion to compel discovery must include
22 with the motion a certification that the movant has in good faith conferred or attempted to confer
23 with the nonresponsive party. Fed. R. Civ. P. 37(a)(2)(B). Courts in this District have held that
24 Judicial intervention should only occur when either informal negotiations have reached an impasse
25 on the substantive issues in dispute, or one party has acted in bad faith by either refusing to negotiate
26 or provide specific support for its claims. Shinn v. Baxa Corp., No. 2:07-CV-01648-JCM, 2011
27 WL 2472663, at *6 (D. Nev. June 21, 2011) (Leen, M.J.); see also Local Rule 267(c) (Discovery
28 motions will not be considered unless the movant (1) has made a good faith effort to meet and confer
7
1 as defined in LR IA 1-3(f) before filing the motion, and (2) includes a declaration setting forth the
2 details and results of the meet-and-confer conference about each disputed discovery request).
3 IV. ZUFFAS EFFORTS TO PRESERVE, COLLECT, AND PRODUCE MR. WHITES TEXT
MESSAGES COMPLY WITH THE FEDERAL RULES OF CIVIL PROCEDURE AND
4 THIS COURTS ESI ORDER.
5 Despite its many allegations, Plaintiffs motion does not establish that Zuffa violated the ESI
6 Order or the Federal Rules of Civil Procedure. From the outset of this litigation, Zuffa has preserved
7 Mr. Whites ESI and produced thousands of his text messages. To assuage Plaintiffs concerns,
8 Zuffa has searched and located one device, which Mr. White no longer used as his work phone by
9 January 2015, and hired a third vendor to perform a forensic analysis of the messages on the phone.
10 Zuffa has concealed nothing and has incurred costs that are disproportionate to the value of any
11 additional text messages Plaintiffs believe they may obtain.
12 A. Zuffas Preservation Of Documents And ESI Exceeded The Reasonableness

Standard.
13
14 The Federal Rules do not require perfection in ESI preservation. Advisory Committee Notes
15 to 2015 Amendment to Rule 37(e) (perfection in preserving all relevant electronically stored
16 information is often impossible, and this rule recognizes that reasonable steps to preserve suffice;
17 it does not call for perfection.). As the Advisory Committee explained, the routine, good-faith
18 operation of an electronic information system would be a relevant factor for the court to consider in
19 evaluating whether a party failed to take reasonable steps to preserve lost information. Id. Zuffas
20 preservation, collection, and production of ESI more than meets this standard.
21 Zuffa acted quickly, diligently, and reasonably and expended tremendous amounts of
22 resources in its efforts to preserve and produce ESI in this matter. On December 18, 2014, two days
23 after his action was initiated in the Northern District of California and on the same day that the initial
24 Complaint was served on Zuffa, then-Chief Legal Officer Kirk Hendrick issued a litigation hold by
25 sending a Mandatory Preservation Notice to all Zuffa employees. Grigsby Decl. 12, Ex. B; Lynch
26 Decl. 5. The Mandatory Preservation Notice instructed all Zuffa employees, including Mr. White,
27 to retain and preserve all documents and ESI. Lynch Decl. 5-6. To avoid the risk of inadvertent
28 loss or deletion of information on portable devices, Zuffa then collected such ESI right after it
8
1 retained counsel for this litigation.
2 By the first and second weeks of January 2015, Zuffa and its counsel had: (1) engaged an e-
3 discovery vendor; and (2) compiled a list of cellular phones for potential document custodians.
4 Id. 10, 13. By the end of January 2015, Zuffa collected those cellular phones and had its e-
5 discovery vendor preserve text messages and other data from those phones. Id. 14. Zuffa also
6 interviewed potential custodians to ensure that no data and documents covered by the Mandatory
7 Preservation Notice would be missed. Zuffas preservation of ESI started before the parties Rule
8 26(f) discovery conference, preceded Plaintiffs discovery requests by several months, and began
9 prior to the issuance of any Court orders regarding discovery. Id. 15.
10 1. Zuffa Has Produced ESI From The -92 Phones, Which Plaintiffs Have Had
Ample Opportunity To Inspect.
11
12 Plaintiffs do not dispute that they have received over 6,800 text messages from Mr. Whites
13 primary business phones, associated with the phone number -92. But Plaintiffs assert that Zuffa has
14 not produced a very small subset of messages sent from the -92 Phones that appear in the text
15 messages of other custodians, but not those of Mr. White. Because Plaintiffs have had the
16 opportunity to review this small subset of messages, the essence of their complaint becomes clear
17 Plaintiffs are having difficulty matching up these text messages to a larger conversation, but
18 cannot deny that they have had the ability to review the messages for more than 10 months. See
19 Lynch Decl. 31, 33; Grigsby Decl. 11. Thus, Plaintiffs have not been deprived of the content of
20 the text messages. They want to double check Zuffas production by pairing multiple copies of the
21 same messages. Yet Plaintiffs do not cite to any precedent to support their position that a party can
22 compel production of communications simply because the other party furnished one instead of two
23 copies of the same ESI. They cannot do so because such a rule would needlessly increase the size of
24 discovery productions. E.g., Fed. R. Civ. P. 26(b)(2)(C)(i) (the court must limit the frequency or
25 extent of discovery otherwise allowed by these rules . . . [if] the discovery sought is unreasonably
26 cumulative or duplicative, or can be obtained from some other source that is more convenient, less
27 burdensome, or less expensive); Lenz v. Universal Music Corp., No. C07-03783 JF HRL, 2012 WL
28 699467, at *4 (N.D. Cal. Mar. 1, 2012) (Plaintiffs counsel need not, however, produce
9
1 communications that are duplicative of those that have already been produced).
2 Plaintiffs also complain that approximately 525 produced text messages Mr. White sent from
3 the -92 Phone did not have dates. Pls Mot to Compel at 21-22. The complaint lacks merit.
4 Rule 26(b)(2)(B) and the ESI Order only required Zuffa to produce all reasonably accessible,
5 responsive, and non-privileged text messages its vendors extracted from Mr. Whites -92 Phones.
6 Zuffa did just that, producing all of the text messages and associated metadata that were reasonably
7 accessible to its e-discovery vendors at the times those messages and associated metadata were
8 extracted from the phones. Zuffa did not alter the text messages and associated metadata produced
9 from the -92 Phones in any way, but produced the texts with all of the ESI Order-specified data and
10 metadata its vendor recovered. Id. 32. To the extent Plaintiffs wish to determine more about
11 particular undated text messages, they remain free to ask questions of Mr. White during his
12 deposition and may also ask questions of any other remaining Zuffa deponent. In any event,
13 Plaintiffs should not be rewarded for their decision to wait until the close of discovery to raise issues
14 with the metadata from Mr. Whites text messages when they have had the messages since July 8,
15 2016. See, e.g., In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 331, 337 (N.D. Ill. 2005) (denying a
16 motion to compel filed the day after discovery closed following two prior extensions of the
17 discovery deadline and explaining that [p]arties should not be rewarded for the kind of purposeful
18 delay exemplified by the plaintiffs in this case) (citing Rossetto v. Pabst Brewing Co., 217 F.3d
19 539, 542 (7th Cir. 2000) (concluding that protracted discovery is the bane of modern litigation));
20 Rogers v. Brauer Law Offices, PLC, No. CV-10-1693-PHX-LOA, 2011 WL 3665346, at *5 (D.
21 Ariz. Aug. 22, 2011) (denying a motion to compel filed after the discovery deadline where the party
22 seeking disclosure had known for [eight] months of Plaintiffs inadequate discovery responses and
23 finding a time period of over eight months to be a more than reasonable [amount of] time to
24 bring a motion to compel).
25 2. Zuffa Preserved The Nokia Phone (-20) In Accordance With The ESI Order
And Has Confirmed That The Handful Of Messages That Can Be Extracted
26 From That Phone Are Not Responsive.
27 Plaintiffs assert that Mr. White very likely received texts which resulted in a continuing
28 deletion of relevant ESI after Plaintiffs filed this lawsuit. Pls Mot. to Compel at 14. This claim is
10
1 devoid of factual support. Plaintiffs cannot identify what non-duplicate text messages they believe
2 were allegedly lost from Mr. Whites Nokia Flip Phone (-20), instead incorrectly assuming that some
3 or all relevant information was deleted after the litigation was filed. Their motion to compel should
4 be denied on this basis alone. Schwartzmiller v. Wong, No. C05-3066 JSW (PR), 2008 WL 685645,
5 at *2 (N.D. Cal. Mar. 13, 2008) (denying motion to compel where Plaintiff has not identified the
6 specific relevance of any specific missing document or response to any particular claim or allegation
7 by Plaintiff).
8 Zuffa asked Mr. White to stop using a Nokia Flip Phone to prevent the very problem of
9 which Plaintiffs complainthe possible passive deletion of text messages. When Mr. White
10 informed Zuffa that he had discovered that the storage on his -20 Nokia Flip Phone was full, Zuffas
11 counsel then collected this phone and stored it to preserve it. Tellingly, Plaintiffs have not pointed to
12 a single text message thread from another custodian or any other facts that would lead to the
13 conclusion that Mr. Whites phone automatically deleted any responsive text messages between
14 December 18, 2014 when Plaintiffs served their complaint, and January 8, 2015, when Mr. White
15 gave counsel his Nokia Flip Phone.
16 As explained above, Zuffa engaged multiple vendors to try to get the text messages off of
17 Mr. Whites older Nokia Flip Phone with limited success. The difficulty getting these texts is
18 unsurprising in light of this model phone. See Grigsby Decl., Ex. I, Declaration of Chapin Bryce
19 (Bryce Decl.) 11. The Nokia 6101b -20 Flip Phone can store only approximately 3 MB of data,
20 which would be able to store less than two iPhone 6 images. Id. 6, 10. Although Zuffa could not
21 get text messages from this phone, Zuffa continued to preserve the phone.
22 Plaintiffs argument that Zuffa acted contrary to provisions in the ESI Order and wait[ed] 26
23 days to tell Plaintiffs the truth infers an illicit motive where none exists and misreads Paragraph
24 4(f). Paragraph 4 of the ESI Order acknowledges that subject to the exceptions enumerated in
25 paragraph (f), Zuffa has taken reasonable and good faith steps to preserve relevant ESI created or
26 received between January 1, 2000 and August 28, 2015, to the extent such relevant ESI existed as of
27 the date the first Complaint in this action was filed. . . . ECF No. 160. Paragraph 4(f), in turn, sets
28 forth certain exceptions where the parties need not preserve ESI, namely, if sources of potentially
11
1 relevant ESI . . . are not reasonably accessible because of undue burden or cost. Id. The remainder
2 of Paragraph 4(f) further clarifies that this provision is triggered only if a party cannot preserve the
3 ESI, stating:
4 To the extent Plaintiffs or Defendant identifies potentially relevant ESI

that is not reasonably accessible, the parties agree that they are not
5 required to preserve, search, review or produce such ESI, provided that
the party that has identified what it reasonably believes to constitute
6 such ESI provides reasonable notice to the opposing party. The parties
shall meet and confer following such notice. Upon agreement by the
7 parties or a Court order, the party in possession of ESI that is not
reasonably accessible shall not be required to preserve, search, review
8 or produce such ESI.
9 Id. The ESI Order provides examples of entire categories of ESI that are not reasonably accessible,
10 such as back up media, disaster recovery tapes, autosaved documents, and temporary internet files.
11 By its terms, Paragraph 4(f) does not apply to the Nokia -20 Flip Phone because this
12 paragraph concerns circumstances where a party has no obligation to preserve ESI. Zuffa never told
13 Plaintiffs that it was not required to preserve the text messages in the phoneZuffa did preserve
14 those messages. As Zuffa has informed Plaintiffs, Zuffa had trouble pulling text messages from the
15 phone, which Mr. White stopped using in January 2015. Because Zuffa preserved the phone but was
16 unable to extract any text messages from it, Zuffa had no reason to request a meet and confer
17 conference pursuant to Paragraph 4(f).
18 Moreover, Zuffas conduct and its willingness to give the Nokia Flip Phone to Plaintiffs
19 vendor refutes Plaintiffs allegation that Zuffa tried to conceal that it could not extract messages
20 from the phone. Although not required by the ESI Order, Zuffa initially hired not one, but two
21 vendors to get the small number of text messages that could be stored on the cell phone. Lynch
22 Decl. 13, 23. After Plaintiffs stated that they wanted to engage their own vendor to attempt to get
23 these text messages, Zuffa agreed and proposed a joint protocol to transport the phone to Plaintiffs.
24 As of this date, Plaintiffs have not agreed to or made additional comments on the draft protocol to
25 extract text messages. Zuffas efforts to get the messages off of this phone, however, have continued
26 despite Plaintiffs silence. Having heard nothing from Plaintiffs since May 16 regarding the draft
27 protocol to extract text messages, Zuffa recently hired a third vendor to perform a forensic analysis
28 of the Nokia Flip Phone, which has allowed Zuffa to recover approximately thirty messages that
12
1 Zuffa has reviewed and determined are not responsive to Plaintiffs Requests for Production of
2 Documents.
3 It remains unclear what universe Plaintiffs expected to find on a device that holds only
4 approximately 3 MB of data. Pls Mot. to Compel at 15; see Bryce Decl. 10. But Zuffa has made
5 every effort to respond to Plaintiffs escalating demands. Despite the substantial cost and difficulty
6 to extract text messages from the Nokia Flip Phone, Zuffa has agreed to a protocol and even
7 performed a separate analysis of the phone. Such efforts go well beyond what the law and the ESI
8 Order requires.
9 3. Zuffa Has Produced Text Messages From The -75 Phone And Will Produce
Messages That Have Been Recovered From The Phone.
10
11 Plaintiffs also take issue with Zuffas productions from two other cellular phones, one that
12 Mr. White no longer used as a dedicated work phone in December 2014 (-75) and another that by
13 Plaintiffs own estimation contained a small fraction of arguably relevant text messages (-27). With
14 respect to the -75 line, Plaintiffs prematurely concluded that the text message contents of this line
15 were deleted, that Zuffa would not find the device, and that they have not received the highly
16 relevant text messages from that number. They are wrong on all counts.
17 First, Plaintiffs brief incorrectly repeats numerous times that the -75 device was not subject
18 to a litigation hold. Pls Mot. to Compel at 5, 9, 15. All potentially responsive information was
19 subject to a litigation hold. The -75 device was no different. Zuffas Mandatory Preservation
20 Notice, which counsel sent to all employees, informed them that they must preserve all categories
21 of information at this time. Grigsby Decl. 12 & Ex. B at 5 (Mandatory Notice at 3). The notice
22 further stated that all Zuffa employees responsibility to comply with this Notice is ongoing and
23 exists until you receive further notice from the Zuffa Legal Department. Id. at 6 (Mandatory Notice
24 at 4). The notice did not distinguish between ESI that was subject to the hold and ESI that was
25 not. More importantly, the litigation hold did not condition the obligation to preserve on the location
26 of the ESI. The hold instructed Zuffas employees to preserve all evidence potentially relevant to
27 the lawsuit, regardless of the device on which the information was stored. Id. at 1 (Cover email
28 from K. Hendrick to Zuffa Employees, Dec. 18, 2014). The Mandatory Preservation Notice
13
1 extended to existing ESI on all devices, including employees cell phones.
2 Although Zuffa initially told Plaintiffs counsel that it would investigate the whereabouts of
3 the older Nokia phone (-75), Plaintiffs mistakenly interpreted this conversation as a concession that
4 it would be impossible to recover text messages from this phone. As Zuffa explained, this phone
5 was not initially identified as a work phone for Mr. White. However, throughout April and May
6 2017, Zuffa has searched for the second Nokia Flip Phone while the company was in the midst of
7 moving to a new location. White Decl. 16. As with the -20 Flip Phone, the -75 Phone is an
8 identical-model Nokia 6101b, type RM-77, which has only approximately 3 MB of memory. Bryce
9 Decl. 7, 10. After sorting through dozens of boxes, Zuffa located the Nokia Flip Phone associated
10 with this number. Just days later, counsel sent the phone to a vendor to do a forensic analysis of the
11 phone. From that analysis, Zuffa extracted approximately 260 text messages, roughly 70 of which
12 appear to be responsive to Plaintiffs First Request for Production of Documents, and will be
13 produced to Plaintiffs by May 26, 2017.
14 4. The -27 Phone Was Not A Business Phone, And Plaintiffs Have The 51
Responsive Text Messages From That Number.
15
16 Plaintiffs try to classify Mr. Whites personal device (-27) as a business phone based on a
17 few text messages Mr. White sent to himself from that phone and a few produced by other
18 custodians. Pls Mot. to Compel at 18. Yet buried in the footnotes of Plaintiffs motion, they
19 concede that the sum total of these text messages is 51. Pls Mot. to Compel 16 n.11. The very
20 small number of texts, Pls Mot to Compel at 18, produced from this phone confirms that
21 Mr. White maintained that phone (-27) as a personal line.
22 Mr. Whites declaration and the data reflect that he used the -27 number rarely, if ever, for
23 UFC-related business. Mr. Whites declaration clarifies that the -27 number was a personal phone.
24 White Decl. 12. Further, although a handful of his colleagues at Zuffa, whom he considered
25 personal friends, had this number, they would not normally contact him on this line for UFC-
26 business. Id. 7. Some of these colleagues may have inadvertently texted to this number, instead of
27 Mr. Whites work phone. Id. Zuffas production demonstrates that other custodians rarely texted
28 Mr. Whites personal line with anything remotely related to UFC. The 51 messages Plaintiffs have
14
1 identified signify approximately 0.1% of the 44,928 text messages Zuffa produced, and only
2 approximately 0.7% of the text messages Zuffa produced from Dana Whites phones. These 51
3 messages also include two messages Mr. White forwarded from his personal device to the
4 appropriate phone. Pls Mot. to Compel at 18; see White Decl. 7. The facts bear out what Zuffa
5 told Plaintiffsneither Mr. White nor anyone at Zuffa identified this phone as a device that might
6 contain information related to Plaintiffs antitrust lawsuit because Mr. White did not carry that
7 device to conduct business.
8 To attempt to satisfy Plaintiffs that Mr. White, like many other individuals, had a personal
9 phone on which he sent and received personal texts, Zuffa offered to collect and extract text
10 messages from this device, an offer that Plaintiffs now interpret to mean that the phone had
11 additional relevant text messages. As Zuffas counsel informed Plaintiffs, the -27 phone was one of
12 Mr. Whites personal devices that was not identified as having UFC-related information. Grigsby
13 Decl. 12-13. Although Zuffas counsel later learned that the device from the relevant time period
14 had been lost, White Decl. 15, this fact does not change that Plaintiffs demand for a detailed log of
15 years of communications from Mr. Whites personal phone is inappropriate and disproportionate.
16 Plaintiffs claim such a log is critical to determine how many texts were deleted by:
17 (a) both White and the custodians for whom Defendant produced texts sent to/from -27 and (b)
18 White that were exchanged with non-custodians. Pls Mot. to Compel at 19. This statement rests
19 on the tenuous presumption that other custodians deleted text messages from Mr. White, a
20 presumption for which Plaintiffs have no evidence. Plaintiffs rationale for the log is flawed for
21 another reason. Even a communications log would not reveal the content of any text messages.
22 Grigsby Decl., Ex. D, T-Mobile Privacy Policy Highlights at 7. Whether a text message is relevant
23 to this litigation and responsive to Plaintiffs discovery requests necessarily depends on what the
24 message says. As a result, without any substantive content, Mr. Whites communications log cannot
25 reveal whether Mr. White deleted any texts relevant to Plaintiffs case. Plaintiffs ignore this
26 practical constraint and instead speculate as to the potential value of the logs for their case. Plaintiffs
27 cannot articulate how a log of years of personal calls and text messages would enable them to find
28 responsive, discoverable information.
15
1
B. Plaintiffs Have Not Suffered Prejudice From Any Alleged Failure To Produce Text
2 Messages.
3 Even assuming that Mr. Whites devices at one time had relevant information that cannot be
4 produced, Plaintiffs have not suffered any prejudice. First, Plaintiffs are not entitled to allegedly lost
5 or destroyed messages that either never existed or were deleted before Zuffa implemented a
6 litigation hold. Second, by Plaintiffs own accounts, they have received the relevant text messages
7 from both numbers, even those that pre-date this litigation, through Zuffas production of text
8 messages from other custodians.
9 1. Text Message Exchanges Before The Litigation Commenced Cannot Support

Plaintiffs Claim That Zuffa Failed To Preserve ESI.
10
11 The majority of the highly relevant text messages that Plaintiffs contend deal with issues
12 pertinent to this lawsuit and were sent to and from the - 75 number were sent well before Plaintiffs
13 filed this litigation and would have been deleted or overwritten to free storage on Mr. Whites
14 device.
15 The text message exchange Plaintiffs pinpoint from February 2014 as damning is not
16 evidence that Zuffa failed to preserve text messages during this litigation. For example, Plaintiffs
17 point to a text message exchange between Dana White and Lorenzo Fertitta concerning Gilbert
18 Melendez, an athlete for whom Zuffa chose to match an offer from Bellator MMA (Bellator). Pls
19 Mot. to Compel at 17 & Ex. 24. First, if Zuffa had tried to hide this exchange or Mr. White
20 intentionally deleted these messages, it would make little sense for Zuffa to have produced this text
21 message from another custodian, here Mr. Fertitta. Second, Mr. White texted this message from a
22 Nokia Flip Phone that held only a few weeks of text messages because it had only approximately 3
23 MB of memory. Bryce Decl. 10; White Decl. 4. Therefore, this text message exchange was not
24 discoverable on Mr. Whites device on December 18, 2014. Nor could Zuffa have recovered the
25 July 2013 exchange between Sean Shelby and Dana White concerning match-making. Any text
26 messages between Mr. White and others at Zuffa from these early periods no longer existed on
27 Mr. Whites phone when Plaintiffs filed this litigation.
28 Plaintiffs insinuation that Mr. White may have deleted text messages that refer to the named
16
1 Plaintiffs after he received the litigation hold is perhaps the most specious claim. Plaintiffs assert
2 that no less than 26 text messages refer directly to the named plaintiffs in this case, including Cung
3 Le, Jon Fitch, and Brandon Vera. Pls Mot. to Compel at 16. Nowhere in their motion or the
4 sundry exhibits do Plaintiffs mention that all of these texts pre-date the litigation. Mr. White had no
5 duty or reason to preserve these text messages at the time they were sent.
6 2. Zuffa Produced Text Message Exchanges From Other Custodians.
7 Even assuming Mr. White inadvertently deleted messages after December 18, 2014,
8 Plaintiffs have not been prejudiced by the alleged failure to produce these duplicate text messages
9 from Mr. White as a custodian. Put simply, Plaintiffs already have the messages.
10 Rule 26 expressly states that a court should limit the frequency or extent of discovery if
11 the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other
12 source that is more convenient, less burdensome, or less expensive. Fed. R. Civ. P. 26(b)(2)(C)(i).
13 Consistent with this principle, courts have denied motions to compel ESI information, where, as
14 here, Plaintiffs have other means of getting the same relevant information. For example, in Larsen v.
15 Coldwell Banker Real Estate Corp., 2012 WL 359466 (C.D. Cal. Feb. 2, 2012), the district court
16 considered the plaintiffs request for the court to compel production of ESI , order the defendants to
17 answer 12 questions related to their ESI preservation, collection and processing, and order a third-
18 party to re-collect and analyze the defendants ESI. Id. at *1. Denying the motion, the court
19 explained that this type of request must fail because Plaintiffs had not made any argument that the
20 alleged discrepancies in Defendants document production have prevented them in any way from
21 obtaining information relevant to a claim or defense under Fed. R. Civ. P. 26(b)(1). Id. at *7. Such
22 an approach is consonant with Rule 26s emphasis on the need to balance the value of the
23 discoverable ESI against the burden and expense to the party producing this information.
24 That Plaintiffs have received and reviewed Mr. Whites otherwise inaccessible text messages
25 from other custodians demonstrates that Plaintiffs seek nothing more than duplicative information.
26 There is no prejudice here.2 Plaintiffs readily admit that Zuffa produced 1,341 text messages from
27
2 Plaintiffs incorrectly assume that the attorneys reviewing text messages would have noticed that
28 Zuffa had not produced texts from certain of Mr. Whites phones. This assumption is incorrect. To
17
1 the -75 number and 51 messages from the -27 number. Pls Mot. to Compel at 16. Plaintiffs make
2 much out of various exchanges between Zuffas employees, but at bottom they cannot identify a
3 particular negotiation, time period, or facts for which they are missing text messages.
4 Because Plaintiffs have no proof that they are missing the relevant exchanges, they instead
5 argue that Zuffa was unable to produce copies of the same documents. They argue that they cannot
6 pair the duplicate copies of the same text messages. This allegation does not establish prejudice,
7 particularly when Plaintiffs motion demonstrates that they have received many text message
8 conversations they contend are relevant despite the fact those messages (for entirely legitimate
9 reasons) would not have been accessible from Mr. Whites second Nokia Flip Phone. Pls Mot. to
10 Compel at 18 (Five attorneys for Fertitta were present for his dramatic testimony (including Zuffas
11 General Counsel), regarding the damning exchange that White initiated from his -75 number).
12 V. PLAINTIFFS ADVOCATE AN EXTREME STANDARD OF DISCOVERY THAT

UNDERSCORES THE REASONABLENESS OF ZUFFAS EFFORTS.
13
14 Plaintiffs invention of discovery obligations where no such obligations exist extends far
15 beyond their extreme position on requesting a log of Mr. Whites communications devices, including
16 his personal cell phones. Plaintiffs argue that Zuffa has an obligation for every Court Ordered and
17 Agreed Custodian to provide an inventory of all personal and business electronic devices that
18 potentially could contain relevant information during a 15-year time frame on the off chance that a
19 Zuffa employee may have sent or received even a single text message related to UFC. Pls Proposed
20 Order at 2-3, ECF No. 395-2. For all these personal and business devices, Plaintiffs also contend
21 that they are entitled to a statement from Zuffa on: (1) the model, make, number, email address, and
22 social media handle; (2) whether the device was subject to a litigation hold and other details about
23 the hold notice; (3) whether the device was physically inspected by counsel; (4) the method Zuffas
24 attorneys used to determine if the device contained discoverable ESI; (5) whether ESI was collected
25 with the dates of collection and date range; and (6) the reason why any device was not collected. Id.
26
27 produce text messages quickly, Zuffa had multiple attorneys review the text messages concurrently,
with each attorney assigned to review particular custodians files. Lynch Decl. 30. Therefore, the
28 person reviewing Lorenzo Fertittas texts did not match them to Dana Whites text messages.
18
1 Such a broad approach is unnecessary and would bring to a halt fact discovery in this case,
2 which was to be completed weeks ago. Plaintiffs have found isolated issues with the production of
3 Mr. Whites texts, and argue that these issues are proof of a conspiracy to delete or destroy ESI.
4 These outlandish statements do not demonstrate that Zuffa failed to comply with its discovery
5 obligations or failed to preserve relevant ESI. Plaintiffs own motion reveals that they do not want
6 this information for a specific purpose, but more generally to open discovery anew in the hopes that
7 they can find what third parties may be referenced. Pls Mot. to Compel at 22 (emphasis
8 added). Plaintiffs approach subverts the principles of reasonableness and proportionality
9 prescribed by the rules governing discovery and circumvent the carefully crafted limits on discovery
10 imposed by this Court.
11 The cost of extracting Mr. Whites prior flip phone messages through forensic analysis
12 illustrates why courts do not require parties to chase down every possible source of evidence no
13 matter how remote or unlikely to produce useful information. Setting aside the millions of pages of
14 documents produced in this case, extracting text messages has cost Zuffa over $100,000, accounting
15 for fees associated with three different vendors. Lynch Decl. 43. This figure does not encompass
16 the dozens of hours attorneys have spent on supervising the vendors and negotiating a protocol for
17 Plaintiffs to view the messages. The additional hours spent investigating the whereabouts of
18 Mr. Whites old phone (-75) and his personal phone (-27) has yielded roughly 490 text messages,
19 many of which have dissociated messages and metadata, Bryce Decl. 12-13, and none of which
20 appear to be particularly significant to Plaintiffs claims that Zuffa violated Section 2 of the Sherman
21 Act. The costs to get every retrievable message from Mr. Whites antiquated Nokia Flip Phones is
22 powerful evidence of the reasonableness of Zuffas efforts and the unreasonableness of the standard
23 Plaintiffs ask the Court to endorse.
24 VI. PLAINTIFFS NEVER REQUESTED TO MEET AND CONFER ON MOST OF THE

SWEEPING RELIEF THEY NOW SEEK.
25
26 In addition to failing on the merits, Plaintiffs motion is procedurally improper because
27 Plaintiffs have failed to comply with the requirements of Federal Rule of Civil Procedure 37(a) and
28 Local Rule 26-7, which obligate parties to meet and confer prior to seeking relief from the Court.
19
1 Because the parties have not met and conferred on the precise issues raised in this dispute,
2 Mr. DellAngelos declaration fails to meet the requirements of L.R. IA 1-3(f)(2), including
3 describing all meet-and-confer efforts, including the time, place, manner, and participants and
4 providing a certification that despite a sincere effort to resolve or narrow the dispute during the
5 meet and confer conference, the parties were unable to resolve or narrow the dispute without court
6 intervention. Local Rule 26-7 makes clear that discovery motions that do not comply with its
7 requirements will not be considered. As such, Plaintiffs motion can also be denied on this
8 independent basis. Elan Microelecs. Corp. v. Pixcir Microelecs. Co. Ltd., No. 2:10-cv-00014-GMN-
9 PAL, 2013 WL 4499006, at *6 (D. Nev. Aug. 14, 2013).
10 During the May 5 meet and confer, Plaintiffs proposed that Zuffa either produce a log of
11 Dana Whites discoverable electronic communications or consent to service of a subpoena to obtain
12 log data associated with Mr. Whites devices. At that time, Zuffa informed Plaintiffs that it
13 continued to investigate the issues surrounding Mr. Whites communications and intended to
14 respond to Plaintiffs shortly with a counterproposal that would resolve these issues. Zuffa had no
15 reason to believe at the conclusion of this meet and confer that the parties had reached an impasse on
16 all the ESI issues for which Plaintiffs now seek relief. For example, Plaintiffs did not mention
17 during this meet and confer that they intended to seek relief related to Mr. Whites -92 number.
18 Nevertheless, Plaintiffs filed their motion to compel just two business days later. Because of
19 Plaintiffs failure to meet and confer on the motions sweeping scope, Zuffa first learned of many of
20 the issues Plaintiffs now seek relief on from the motion, and Zuffa has therefore been deprived of the
21 opportunity to evaluate Plaintiffs request before the Court intervenes. Among other surprises, the
22 motion requests that Zuffa submit to the Court and Plaintiffs a written report regarding Zuffas
23 identification, collection, preservation, and production of ESI from the electronic communication
24 devices of all Court Ordered custodians. Zuffa must also inventory each and every custodians
25 personal and business devices for the entire time period, and must track the model number,
26 telephone number, email address, social media handle, or any other identifying information for this
27 excessive amount of devices. This request far exceeds the scope of the issues that Plaintiff has
28 identified to Zuffa, whether during the May 5 meet-and-confer conference or at any other time. This
20
1 request will burden Zuffa and improperly depriving Zuffa of the opportunity to propose alternative
2 resolutions for this issue is a valid basis for denying Plaintiffs motion. Grigsby Decl. 18, 20.
3 VII. CONCLUSION
4 For the foregoing reasons, Plaintiffs Motion to Compel (ECF. Nos. 395-398) should be
5 denied.
7 Dated: May 24, 2017 Respectfully Submitted,
8 BOIES SCHILLER FLEXNER LLP

9
10 By: /s/ Stacey K. Grigsby

Stacey K. Grigsby
11 Attorneys for Defendant Zuffa, LLC, d/b/a
Ultimate Fighting Championship and UFC
12
WILLIAM A. ISAACSON (Pro hac vice)
13 (wisaacson@bsfllp.com)
STACEY K. GRIGSBY (Pro hac vice)
14 (sgrigsby@bsfllp.com)
NICHOLAS A. WIDNELL (Pro hac vice)
15 (nwidnell@bsfllp.com)
16 1401 New York Ave., NW, Washington, DC 20005
Telephone: (202) 237-2727; Fax: (202) 237-6131
17
RICHARD J. POCKER #3568
18 (rpocker@bsfllp.com)
19 300 South Fourth St., Ste. 800, Las Vegas, NV 89101
Telephone: (702) 382 7300; Fax: (702) 382 2755
20
DONALD J. CAMPBELL #1216
21 (djc@campbellandwilliams.com)
J. COLBY WILLIAMS #5549
22 (jcw@campbellandwilliams.com)
CAMPBELL & WILLIAMS
23 700 South 7th Street, Las Vegas, NV 89101
Telephone: (702) 382-5222; Fax: (702) 382-0540
24
Attorneys for Defendant Zuffa, LLC, d/b/a
25 Ultimate Fighting Championship and UFC
26
27
28
21
1 CERTIFICATE OF SERVICE
2 The undersigned hereby certifies that the foregoing ZUFFA, LLCS OPPOSITION TO
3 PLAINTIFFS MOTION TO COMPEL DEFENDANT TO PRODUCE A LOG OF
4 COMMUNICATIONS FOR DANA WHITES DISCOVERABLE TELEPHONE NUMBERS
5 AND ELECTRONIC COMMUNICATION DEVICES AND DIRECTING DEFENDANT TO
6 SUBMIT AN INVENTORY OF ELECTRONIC COMMUNICATION DEVICES (ECF No.
7 395) was served on May 24, 2017 via the Courts CM/ECF electronic filing system addressed to all
8 parties on the e-service list.
10 /s/ Michael Kim
11 Michael Kim, an Employee of Boies

Schiller Flexner LLP
12
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Defendant's Response To Motion To Compel

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Defendant's Response To Motion To Compel

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Case 2:15-cv-01045-RFB-PAL Document 409 Filed 05/24/17 Page 1 of 25

1 WILLIAM A. ISAACSON (Pro hac vice)

10 DONALD J. CAMPBELL #1216

17 UNITED STATES DISTRICT COURT

ZUFFAS OPPN TO PLS MOT. TO COMPEL Case No.: 2:15-cv-01045-RFB-(PAL)

5 In re Sulfuric Acid Antitrust Litig.,

8 Lenz v. Universal Music Corp.,

11 Rossetto v. Pabst Brewing Co.,

14 Shinn v. Baxa Corp.,

21 Federal Rules of Civil Procedure

24 United States District Court, District of Nevada

7 Plaintiffs served Zuffa with their first discovery request.

25 efforts, Plaintiffs have filed the instant motion seeking more.

4 number of additional and unremarkable text messages.

14 II. FACTUAL BACKGROUND

15 A. Zuffas Initial Steps To Preserve ESI In Response To This Lawsuit

20 (Mandatory Preservation Notice) to all Zuffa employees. Declaration of Stacey K. Grigsby

24 of the Mandatory Preservation Notice. White Decl. 8; Lynch Decl. 6.

16 phone. White Decl. 11.

22 related communication. Id . 16.

21 C. The Review And Production Of Extracted Text Messages

1 forensic extraction tools. Id.

2 The review of text messages for responsiveness, privilege, and personally-identifiable

11 D. Zuffas Ongoing Efforts To Preserve And Produce Relevant ESI

18 messages to Plaintiffs. Id. 41.

19 E. Plaintiffs Complaints Regarding The Text Message Productions

9 the -92 iPhone 4, and the -92 iPhone 6. Id. 37.

18 extract potentially responsive text messages. Grigsby Decl. 11.

8 deadlines and status conference set for May 18, 2017.

9 III. LEGAL STANDARD

17 proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) . . . , which require consideration of

11 additional text messages Plaintiffs believe they may obtain.

12 A. Zuffas Preservation Of Documents And ESI Exceeded The Reasonableness

1 retained counsel for this litigation.

24 bring a motion to compel).

15 gave counsel his Nokia Flip Phone.

4 To the extent Plaintiffs or Defendant identifies potentially relevant ESI

17 conference pursuant to Paragraph 4(f).

1 extended to existing ESI on all devices, including employees cell phones.

13 produced to Plaintiffs by May 26, 2017.

21 Mr. White maintained that phone (-27) as a personal line.

7 device to conduct business.

28 responsive, discoverable information.

8 messages from other custodians.

9 1. Text Message Exchanges Before The Litigation Commenced Cannot Support

27 Mr. Whites phone when Plaintiffs filed this litigation.

6 2. Zuffa Produced Text Message Exchanges From Other Custodians.

12 V. PLAINTIFFS ADVOCATE AN EXTREME STANDARD OF DISCOVERY THAT

8 added). Plaintiffs approach subverts the principles of reasonableness and proportionality

10 imposed by this Court.

23 Plaintiffs ask the Court to endorse.

24 VI. PLAINTIFFS NEVER REQUESTED TO MEET AND CONFER ON MOST OF THE

26 In addition to failing on the merits, Plaintiffs motion is procedurally improper because

9 PAL, 2013 WL 4499006, at *6 (D. Nev. Aug. 14, 2013).

11 Dana Whites discoverable electronic communications or consent to service of a subpoena to obtain

7 Dated: May 24, 2017 Respectfully Submitted,

8 BOIES SCHILLER FLEXNER LLP

10 By: /s/ Stacey K. Grigsby

3 PLAINTIFFS MOTION TO COMPEL DEFENDANT TO PRODUCE A LOG OF

4 COMMUNICATIONS FOR DANA WHITES DISCOVERABLE TELEPHONE NUMBERS

5 AND ELECTRONIC COMMUNICATION DEVICES AND DIRECTING DEFENDANT TO

6 SUBMIT AN INVENTORY OF ELECTRONIC COMMUNICATION DEVICES (ECF No.

8 parties on the e-service list.