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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`FINJAN, INC.,
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`v.
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`Plaintiff,
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`ESET, LLC and ESET SPOL. S.R.O.,
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`Defendants.
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`
`
`
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` Case No.: 17CV183 CAB (BGS)
`
`ORDER REGARDING
`PROTECTIVE ORDER
`VIOLATIONS
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`[ECF 292]
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`This dispute concerns alleged violations of the parties’ stipulated Protective Order
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`by counsel for Finjan, Mr. Lee. (ECF 292.) In reviewing Eset’s source code, Mr. Lee
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`compiled directory information from the source code computer into a 40-page document
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`that he then produced to a witness during a deposition without any confidentiality
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`designation on the document. (Id.) As explained more fully below, the Court finds Mr.
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`Lee did violate the Protective Order in copying and compiling the directory structure of
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`Eset’s source code from the source code computer. However, the level of sanctions Eset
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`requests are not warranted.
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`BACKGROUND
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`This dispute arose when Finjan’s counsel, Mr. Lee presented a deposition witness
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`with a 40-page document listing the directory structure1 of Eset’s source code (“Exhibit
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`
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`1 The Court refers to the listing Mr. Lee created as “directory structure” or “directories
`and subdirectories,” based on the Court’s own review of the document. While it may
`contain folder names, as Finjan now refers to them, in earlier filings with the Court,
`discussed below, Finjan also described them as directories and subdirectories.
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`17CV183 CAB (BGS)
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`3”). The document lacked any confidentiality designation. During a call with the Court
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`regarding this issue, Mr. Lee indicated he had taken notes about the source code on his
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`laptop while reviewing the source code on the source code computer and that the 40-page
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`document presented to the witness was accessible on Finjan’s counsel’s computer
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`network.
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`By prior order, the Court addressed the more immediate dispute as to whether Mr.
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`Lee should be precluded from accessing Eset’s source code based on these possible
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`violations and how to proceed going forward with review of Eset’s source code. (ECF
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`306.) The Court found he could have access to the source code computer subject to
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`certain limitations, including that he treat the directories, subdirectories, and file paths of
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`the source code as he would treat source code with all the limitations imposed by a
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`“HIGHLY CONFIDENTIAL – SOURCE CODE” designation and that he not take notes
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`“onto any recordable media or recordable device” that could constitute “copy[ing],
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`remov[ing], or otherwise transfer[ring] any portion of the source code” or the directories,
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`subdirectories, or file paths as set forth in §9(c) of the Protective Order. (Id.) The Court
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`also imposed these same limitations on anyone else accessing the source code because of
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`the ongoing need for other individuals to also have access to the source code. (Id.)
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`DISCUSSION
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`Eset asserts numerous violations of the Protective Order under a number of
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`different sections. The relevant sections are summarized here in the order they appear in
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`the Protective Order. A summary of the parties’ positions on their application and the
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`Court’s analysis follow.
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`I.
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`Protective Order
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`Section 2 of the Protective Order is the Definitions section. Section 2.9 is titled
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`“‘HIGHLY CONFIDENTIAL – SOURCE CODE’ Information or Items” and defines
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`HIGHLY CONFIDENTIAL – SOURCE CODE as:
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`extremely sensitive “Confidential Information or items” representing
`computer code and associated comments and revision histories, formulas,
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`2
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`17CV183 CAB (BGS)
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`

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`engineering specifications, or schematics that define or otherwise describe
`in detail the algorithms or structure of software or hardware designs,
`disclosure of which to another Party or Non-Party would create a
`substantial risk of serious harm that could not be avoided by less restrictive
`means.
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`Section 5 addresses designation of protected material. Section 5.2(a), addresses
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`information in a documentary form (paper or electronic). The first paragraph of the
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`section requires a producing party to “affix the legend ‘CONFIDENTIAL OR HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY’ or ‘HIGHLY CONFIDENTIAL –
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`SOURCE CODE’ to each page that contains protected material.” The second paragraph
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`of § 5.2(a) indicates that:
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`A Party or Non-Party that makes original documents or materials available
`for inspection need not designate them for protection until after the
`inspecting Party has indicated which material it would like copied and
`produced. During the inspection and before the designation, all of the
`material made available for inspection shall be deemed “HIGHLY
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting
`Party has identified the documents it wants copied and produced, the
`Producing Party must determine which documents, or portions thereof,
`qualify for protection under this Order. Then, before producing the
`specified documents, the Producing Party must affix the appropriate legend
`(“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
`EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE) to each
`page that contains Protected Material.
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`Section 5.2(c) requires “for information produced in some form other than
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`documentary and for any tangible items, that the Producing Party affix in a prominent
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`place on the exterior of the container or containers in which the information or item is
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`stored the legend ‘CONFIDENTIAL’ or ‘HIGHLY CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY’ or ‘HIGHLY CONFIDENTIAL – SOURCE CODE.’”
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`Section 6 of the Protective Order provides a detailed process to challenge a
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`confidentiality designation, including the timing of a challenge (§ 6.1), a meet and confer
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`requirement (§ 6.2), and a process for raising an unresolved challenge with the Court
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`(§ 6.3).
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`Section 9, SOURCE CODE, addresses designation, treatment, and procedures for
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`access to and documentation of those that have accessed source code. Section 9(a)
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`provides that “[t]o the extent production of source code becomes necessary in this case, a
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`Producing Party may designate source code as ‘HIGHLY CONFIDENTIAL – SOURCE
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`CODE’ if it comprises or includes confidential, proprietary, or trade secret source code.”
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`Section 9(b) indicates that materials “designated as ‘HIGHLY CONFIDENTIAL –
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`SOURCE CODE’ shall be subject to all the protections afforded to ‘HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY’ information” and limits disclosure to
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`those “to whom ‘HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY’
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`information may be disclosed, as set forth in Paragraphs 7.3 and 7.4.”
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`Section 9(c) dictates how any source code will be produced in discovery. It
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`provides:
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`The source code shall be made available for inspection on a secured
`computer in a secured room without Internet access or network access to
`other computers, and the Receiving Party shall not copy, remove, or
`otherwise transfer any portion of the source code onto any recordable media
`or recordable device.
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`Section 9(d) provides that a “Receiving Party may request paper copies of limited
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`portions of source code that are reasonably necessary for the preparation of court filings,
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`pleadings, expert reports, or other papers, or for deposition or trial, but shall not request
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`paper copies for purposes of reviewing the source code other than electronically as set
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`forth in paragraph (c) in the first instance.” It requires the Producing party to provide the
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`requested source code in paper form with bates numbers and the label HIGHLY
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`CONFIDENTIAL – SOURCE CODE and allows the Producing Party to challenge the
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`amount of source code requested in paper form under § 6. Section 9(e) requires the
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`Receiving Party to keep a record of anyone that has inspected any portion, electronic or
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`paper, of the source code and to keep printed portions in a secured locked area. It also
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`17CV183 CAB (BGS)
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`prohibits creation of “any electronic or other images of the paper copies” and
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`“convert[ing] any of the information contained in the paper copies into any electronic
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`format.” Section 9(e) requires the Receiving Party to “maintain a record of any
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`individual who has inspected any portion of the source code in electronic or paper form.”
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`II.
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`Parties’ Positions2
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`A. Eset’s Position
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`Eset asserts that Mr. Lee’s conduct violated § 5.2(a) of the Protective Order
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`because, instead of requesting copies of the directory structure from the source code
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`computer from Eset, it just copied the directories and subdirectories and proceeded to
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`compile and disclose it without any designation. Similarly, ESET asserts Mr. Lee also
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`violated §6 by ignoring the process set out in that section to challenge a designation. In
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`essence, Eset argues that if Finjan believed the directory structure it was compiling from
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`the source code computer should not have the HIGHLY CONFIDENTIAL – SOURCE
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`CODE designation, it should have challenged it through this process rather than taking
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`the information without asking and not designating it at all. Eset also argues Finjan
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`violated § 9 of the Protective Order because the directory structure Mr. Lee copied onto
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`his laptop constitutes source code. By copying it from the source code computer onto his
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`laptop he violated § 9(c)’s prohibition on “copy[ing], remov[ing] or otherwise
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`transfer[ring] any portion of the source code onto any recordable media or recordable
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`device.” Finally, Eset argues Finjan failed to abide by the procedures set out in § 9(d) for
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`obtaining portions of source code.
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`B.
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`Finjan’s Position
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`Finjan does not dispute the directory structure was copied from the source code
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`computer, compiled into a 40-page document, and presented to a witness without any
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`confidentiality designation. Rather, Finjan argues that there was no violation of the
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`2 The Court only summarizes pertinent portions of the parties’ arguments. (See Joint
`Statement [ECF 345] for each parties’ entire argument.)
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`17CV183 CAB (BGS)
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`Protective Order because the directory structure is not source code. Under Finjan’s
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`interpretation, there is no violation in copying the directory structure or failing to
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`designate it as HIGHLY CONFIDENTIAL – SOURCE CODE because it is not source
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`code and Eset has never designated it as HIGHLY CONFIDENTIAL – SOURCE CODE.
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`Finjan also argues that the directory structure should not be treated as source code or
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`subject to the HIGHLY CONFIDENTIAL – SOURCE CODE designation because of
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`instances when Eset did not treat it as source code. Similarly, as to the electronic
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`copying, Finjan argues that the Protective Order does not prohibit the note taking done by
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`Mr. Lee in the source code room. Further, Finjan argues that by seeing Mr. Lee in the
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`source code room taking notes on a laptop, Eset has waived any objection to his having
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`done it.
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`Finjan also claims it could not have known Eset considered these “folders”3 to be
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`source code or warranting the designation. In Finjan’s view, being on the “source code
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`computer” was not enough to alert it that it was copying source code or material subject
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`to the HIGHLY CONFIDENTIAL – SOURCE CODE designation because such a broad
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`designation would improperly encompass the operating system on the computer, certainly
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`not warranting the HIGHLY CONFIDENTIAL – SOURCE CODE designation. Finjan
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`points to § 5.2(c) to further support this position.
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`///
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`///
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`///
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`3 Although the Court recognizes that Finjan is referring to the directory structure at issue
`as “folders” for persuasive effect, that effect is largely lost given Finjan previously
`described portions of the exact same information as follows in its Motion to Compel,
`“ESET’s source code is structured under a top level directory . . . . There are four
`directories under the top level . . . directory . . . . Each of these four directories includes
`subdirectories (listed below) located on the source code computer.” (Finjan’s Mot. to
`Compel ESET to Supplement its Response to Interrogatory No. 7 [ECF 231].)
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`17CV183 CAB (BGS)
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`III. Analysis of Violations
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`A. Waiver of Eset’s Objections
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`Initially, the Court finds that Eset did not waive its objection to Mr. Lee’s
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`electronic note taking. Eset proffered in its response that Mr. Penner presumed that Mr.
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`Lee was using his laptop for a proper purpose. Had he known that Mr. Lee was taking
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`notes, he would have immediately objected. Given both parties conduct as to abiding by
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`this Court’s chambers rules 30-day objection limit, and the numerous times both parties
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`have requested tolling of this rule, the Court finds Mr. Penner’s proffer credible. Eset has
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`brought this dispute timely. They raised it immediately following presentation of Exhibit
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`3 at a deposition.
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`B.
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`Proper Designation
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`1.
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`Section 5.2
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`Section 5.2 addresses the manner and timing of designation. Finjan contends that
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`Eset did not comply with § 5.2(c) by affixing to the exterior of the source code computer
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`a label for HIGHLY CONFIDENTIAL – SOURCE CODE thereby reflecting all its
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`contents were designated source code. Because Eset failed to notify Finjan with the
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`label, Finjan did not have the opportunity to object as Finjan would have. (ECF 345 at
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`15).
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`Section 6 lays out the procedure for Finjan to challenge Eset’s confidentiality
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`designations. If Eset failed to properly designate the directories on the source code
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`computer as being source code, then Finjan was not given the opportunity to challenge
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`this designation pursuant to § 6. Of course, the reverse is also true. If Eset properly
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`designated the contents of the source code computer as source code, which necessarily
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`includes the directories, then Finjan would have been obligated to follow the procedures
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`as set forth in § 6, which it readily admits it did not do.
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`Eset argues that § 5.2(a) is the appropriate section for designation of the contents
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`of the source code computer. Subsection (a) applies to paper or electronic documents,
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`whereas subsection (c) controls information produced in some form other than
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`17CV183 CAB (BGS)
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`documentary. The information produced on the source code computer are electronic
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`documents. Therefore subsection (a) controls the manner and timing of the contents of
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`the source code computer, not (c).
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`Subsection (a)’s paragraph one requires Eset to designate each page that contains
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`protected material, which Eset did not do. Subsection (a)’s second paragraph does not
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`require Eset to designate the material until after inspection by Finjan. This second
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`paragraph applies to original documents. Neither party directly addresses whether the
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`documents on the source code computer are original documents. However, Eset does
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`proffer that no single employee has access to the entirety of the source code, including
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`the Chief Technology Officer. (ECF 345 at 6.) Eset goes on to explain that the source
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`code is only made available on a need to know basis. (Id. at 7). Based on this proffer, the
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`Court concludes for the purposes of 5.2(a)’s second paragraph, the documents on the
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`source code computer are deemed original. As such, by operation of subsection (a), until
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`Eset has been given the opportunity to designate which documents qualify for protection,
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`all the documents on the computer are deemed “Highly Confidential-Attorneys Eye
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`Only.”
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`Pursuant to § 5.2(a), had Mr. Lee wanted copies of the directories, he was required
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`to identify which documents he wanted copied, allow Eset to designate appropriately
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`those documents, and then produce them to Mr. Lee. At that point in time, if Mr. Lee did
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`not agree to Eset’s designations, he could appropriately object by following the procedure
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`set forth in § 6 of the Protective Order. Based on § 5.2(a), the Court finds that Finjan
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`would have had the opportunity to object had Mr. Lee identified the documents he
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`wanted copied, i.e., the directories, and then given Eset the chance to designate them
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`accordingly. He simply did not follow the procedure for the manner and timing of
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`designation as set forth in this section of the Protective Order.
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`Eset argues that Mr. Lee copying the directory structure onto its laptop and
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`producing it in a printed document without Eset’s permission facially violated § 5.2(a).
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`Finjan contends Mr. Lee merely took notes for the purpose of identifying code
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`17CV183 CAB (BGS)
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`appropriate for a printing request. In that the second paragraph of § 5.2(a) is applicable
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`to Mr. Lee’s conduct, the Court finds by copying the directories onto his computer, and
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`not allowing Eset the opportunity to determine how to designate those copied directories,
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`Mr. Lee violated this provision. By operation of subsection (a), paragraph 2, Mr. Lee
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`was required to identify which documents he wanted copied, allow Eset to designate
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`appropriately those documents, and then produce them to Mr. Lee. At that point, if Mr.
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`Lee did not agree to Eset’s designation, he could appropriately object by following the
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`procedure set forth in § 6 of the Protective Order. The Court also stresses by operation of
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`this subsection, until Eset had the opportunity to designate the documents Mr. Lee
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`wanted copied, they are deemed Highly Confidential – Attorneys’ Eyes Only. By
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`copying the directories, and not following this procedure, Mr. Lee did an end run around
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`subsection (a), paragraph 2, thereby violating this provision of the Protective Order.
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`2.
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`Section 9(c)
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`Unlike § 5.2(a), § 9(c)-(d) refer only to “source code.” These sections do not state
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`that they apply to any materials designated as HIGHLY CONFIDENTIAL – SOURCE
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`CODE, a designation broader than source code. Nor does either section incorporate in
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`any way the definition of HIGHLY CONFIDENTIAL – SOURCE CODE.4
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`Additionally, the Protective Order lacks a definition for “source code.” Section 2.9
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`defines materials subject to the HIGHLY CONFIDENTIAL – SOURCE CODE
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`designation, but § 9 does not define “source code.” Therefore, in determining whether
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`Mr. Lee’s conduct violated § 9(c), the issue before the Court is whether he was on proper
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`notice that the contents of the source code computer were designated as source code.
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`4 Section 9 does refer to the designation. It specifically allows for the production and
`designation of source code as HIGHLY CONFIDENTIAL – SOURCE CODE and
`indicates how it is to be treated pursuant other sections of the Protective Order. (§ 9(a)-
`(b).)
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`17CV183 CAB (BGS)
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`The Court is persuaded that § 9(c)-(d) is intended to apply to the contents of the
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`“source code computer.” Section 9(c) provides, “Any source code produced in discovery
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`shall be made available for inspection…”. This opening sentence puts all parties on
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`notice that the procedure for inspection deals only with source code. Section 9(c) sets out
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`the parameters for source code review, including the use of a secured room, secured
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`computer, and prohibitions on Internet or network access. The same sentence of the
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`Protective Order within § 9(c) that creates the source code computer subject to all these
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`limitations to keep its contents secure also prohibits copying from it onto any recordable
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`media or recordable device. Although § 9 does not explicitly define source code to
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`encompass the directories and subdirectories of the source code, the Court cannot ignore
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`that they were on the source code computer with all its restrictions for inspection outlined
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`in § 9(c) that only apply to source code discovery placed on the source code computer.
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`By Eset following to the letter the restrictions for source code inspection set forth
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`in § 9(c), it has properly designated all the contents of the source code computer as
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`source code. Mr. Lee was on notice that the electronic documents on the source code
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`computer were being designated by Eset as source code. If Mr. Lee, after inspecting the
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`contents of the source code computer, objected to the directories being included on the
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`computer as source code, he was required to follow the procedures for objecting under
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`§ 6. He did not do this.
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`C. Electronic Note Taking – Section 9(c) Violation
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`Finjan contends that the electronic note taking by Mr. Lee is not prohibited by
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`§ 9(c) in that it did not constitute “copying, removing or otherwise transferring” source
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`code. The Court disagrees with Finjan’s interpretation of note taking as being separate
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`from the specific language of § 9(c), which prohibits the receiving party from copying or
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`otherwise transferring any portion of the source code onto any recordable device. The
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`Court finds that Mr. Lee’s typing some 40 pages of the directory structure from the
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`source code computer amounts to copying or otherwise transferring what Eset has
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`designated as source code onto his laptop, which is a recordable device. This conduct
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`was a violation of § 9(c). If he wanted copies of the directories, pursuant to § 9(d), he
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`could have asked Eset for paper copies. He chose not to follow the agreed upon
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`procedure, instead taking it upon himself to copy the directory structure of the source
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`code and then use it at a deposition.
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`Finjan argues strenuously that the directory structure cannot be considered source
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`code under § 9 because it is nothing more than folder names undeserving of any
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`protection. It also argues that including the directories as source code is grossly
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`overbroad in contradiction to § 5.1. The Court concludes that these objections should
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`have been presented through the procedure in § 6 regarding challenging the designation
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`as directed in § 9(d), not after the fact as part of this dispute.
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`Similarly, the Court is not persuaded that Finjan could not have known Eset
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`considered the directory structure to be confidential. Both Eset and Finjan’s filings with
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`the Court have indicated that the directory structure is subject to the HIGHLY
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`CONFIDENTIAL – SOURCE CODE designation and that Finjan knew Eset considered
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`it, at a minimum, to reference source code. In filing a Motion to Compel on March 9,
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`2018, Finjan sought to file portions of these same directories and subdirectories under
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`seal. In its Motion to File Under Seal, Finjan specifically asserted to the Court that
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`“based on Eset’s representations and designations, the portions of the Motion to Compel
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`that Finjan seeks to file under seal5 reference source code designated by ESET as
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`‘HIGHLY CONFIDENTIAL – SOURCE CODE’” under the Protective Order. (Finjan’s
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`Mot. to File Documents Under Seal [ECF 229] (emphasis added).) The only information
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`redacted in Finjan’s Motion to Compel are directories and subdirectories that are included
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`in the 40-page document Finjan created from the source code computer. Similarly, in
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`5 The Court has compared the redacted portions of Finjan’s Motion to Compel, as well as
`the chart provided by Finjan in seeking to file those portions under seal and confirmed
`the 40-page directory structure Finjan compiled includes these directories and
`subdirectories.
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`opposing Finjan’s Motion to Compel, Eset also redacted directory names and indicated in
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`seeking to file those portions under seal that the brief “contained materials designated by
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`Eset as ‘HIGHLY CONFIDENTIAL – SOURCE CODE’” and identified as an example
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`that “the documents above disclose information relating to source code directory
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`structure and file names.” (Eset’s Mot. for Leave to File Documents Under Seal [ECF
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`233] at 2.) Finjan considered these directories and subdirectories to be referencing source
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`code and having been designated as “HIGHLY CONFIDENTIAL – SOURCE CODE”
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`by Eset.
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`In sum, Mr. Lee’s copying contents of the source code computer, particularly on
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`such a large scale, to a recordable media device was a violation of § 9(c).
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`II.
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`Sanctions
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`Eset seeks sanctions against Finjan for violations of the Protective Order pursuant
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`to Federal Rule of Civil Procedure 37(b)(2). Eset requests: (1) an order requiring Finjan
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`to provide an accounting of all documents, in any form, that include information from the
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`source code computer; (2) as to each document, that Finjan be ordered to provide Eset
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`and the Court a full accounting as to each document, including when and who created it,
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`where it was stored, and to whom it was sent and when; (3) that the contents of all of
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`those documents be submitted to the Court for in-camera review to determine if there
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`were other Protective Order violations; (4) that the Court order each document the Court
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`finds in violation of the Protective Order be destroyed; and (5) that the Court require
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`Finjan to certify destruction of such materials. Pursuant to Rule 37(b)(2)(C), Eset also
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`seeks reasonable expenses and attorney’s fees related to this motion.6
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`6 Eset’s request that Mr. Lee be walled off entirely from this case has already been denied
`by prior order of the Court. In the Court’s prior Order, Mr. Lee was allowed to continue
`to have access to the source code computer, but subject to specific limitations. The Court
`prohibited Mr. Lee or anyone else reviewing materials on the source code computer from
`copying not only source code, but the directories, subdirectories, or file paths “onto any
`recordable media or recordable device” that could constitute “copy[ing], remov[ing], or
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`17CV183 CAB (BGS)
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`Finjan argues the sanctions sought regarding an accounting of all individuals
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`having access and an in-camera review are onerous and irrational because there is no
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`actual source code at issue. Finjan points to emails between counsel for the parties that
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`have included portions of the directory structure as an indicator that such remedial
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`measures are unwarranted. In addressing its efforts to resolve this dispute without Court
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`intervention, Finjan explains that it has already offered to destroy all electronic and paper
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`copies of the exhibit and forego any use of it in this action. Finjan also indicates that it
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`has never shown Exhibit 3 to any individuals other than those who are permitted to
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`access materials designated as HIGHLY CONFIDENTIAL – SOURCE CODE.
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`The Court may impose sanctions for violations of a protective orders under Federal
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`Rule of Civil Procedure 37(b)(2). See Westinghouse Elec. Corp. v. Newman &
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`Holtzinger, P.C., 992 F.2d 932, 934-35 (9th Cir. 1993) (quoting Advisory Committee
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`Note, 1970 Amendment, subdivision (b)); see also United States v. Nat’l Med. Enters.,
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`Inc., 792 F.2d 906, 910-11 (9th Cir.1986) (upholding a Rule 37(b) sanction for a party’s
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`violation of the protective order). Rule 37(b)(2)(A) provides as follows:
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`If a party or a party’s officer, director, or managing agent—or a witness
`designated under Rule 30(b)(6) or 31(a)(4)—fails to obey an order to
`provide or permit discovery, including an order under Rule 26(f), 35, or
`37(a), the court where the action is pending may issue further just
`orders. They may include the following:
`(i) directing that the matters embraced in the order or other
`designated facts be taken as established for purposes of the action,
`as the prevailing party claims;
`(ii) prohibiting the disobedient party from supporting or opposing
`designated claims or defenses, or from introducing designated
`matters in evidence;
`(iii) striking pleadings in whole or in part;
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`otherwise transfer[ring] any portion of the source code” or the directories, subdirectories,
`or file paths as set forth in §9(c) of the Protective Order.
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`(iv) staying further proceedings until the order is obeyed;
`(v) dismissing the action or proceeding in whole or in part;
`(vi) rendering a default judgment against the disobedient party; or
`(vii) treating as contempt of court the failure to obey any order
`except an order to submit to a physical or mental examination.
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`As to expenses and attorney’s fees, Rule 37(b)(2)(C) provides:
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`Instead of or in addition to the orders above, the court must order the
`disobedient party, the attorney advising that party, or both to pay the
`reasonable expenses, including attorney’s fees, caused by the failure,
`unless the failure was substantially justified or other circumstances make
`an award of expenses unjust.
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`A violation need not be willful for sanctions to be imposed, however,
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`“[w]illfullness continues to play a role, along with various other factors, in the choice of
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`sanctions.” David v. Hooker, 560 F.2d 412, 419-20 (9th Cir. 1977); see also Liew v.
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`Breen, 640 F.2d 1046, 1050 (9th Cir. 1981) (“Although willfulness need not be present in
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`order to impose sanctions under Rule 37(b), a good faith dispute concerning a discovery
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`question might, in the proper case, constitute substantial justification.”)(internal citations
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`omitted). Similarly, “[w]hile a finding of bad faith is not a requirement for imposing
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`sanctions, good or bad faith may be a consideration in determining whether imposition of
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`sanctions would be unjust.” Hy