THE SUNRIDER CORPORATION, et al., Plaintiffs, v. BOUNTIFUL BIOTECH CORP., et al., Defendants No. SACV 08–1339 DOC (AJWx) United States District Court, C.D. California, Southern Division October 08, 2010 Counsel Brandon T. Lam, Sunrider International, Torrance, CA, Frederick L. Wilks, Matthew A. Hodel, Hodel Briggs Witner LLP, Irvine, CA, for Plaintiffs. Richard T. Hsueh, Law Offices of Robert C. Hsu, Temple City, CA, for Defendants. Wistrich, Andrew J., United States Magistrate Judge REPORT AND RECOMMENDATION *1 Before the Court is the renewed motion of plaintiff and counter-defendant The Sunrider Corporation (“Sunrider”) and plaintiff Sunrider Taiwan, Inc. (“Sunrider Taiwan”) (collectively, “plaintiffs”) pursuant to Rules 37(b) and 37(c) of the Federal Rules of Civil Procedure for an order: (1) precluding defendant and counter-claimant Shun Sheng Chen a/k/a Sam Chen (“Chen”) from offering evidence at trial on the issue of his ownership and control of defendant Bountiful Healthcare Technology Corporation (“BHTC”)[1], Chen's alter ego liability, and on the issue of damages, and/or (2) striking the answer filed by Chen and entering his default. [Plaintiff's Notice of Renewal and Renewal of Motion for Terminating Sanctions filed June 9, 2010 (“Sanctions Motion”) at 2[2]]. In support of that motion, plaintiffs filed a memorandum of points and authorities (“Plaintiffs' Mem.”); a “Supplemental Brief and Reply” (“Plaintiffs' Supp. Brief”) filed July 8, 2010; two declarations of plaintiffs' counsel Fred L. Wilks with attached exhibits, the first filed on June 9, 2010 (“Wilks Decl. I”) and the second on July 8, 2010 (“Wilks Decl. II”); the July 8, 2010 declaration of Sunrider's local counsel in Taiwan, Victor I–Hsiu Chang (“Victor Chang Decl.”), with attached exhibits; and the declaration Jui–Chieh Tsai (“Tsai Decl.”), with attached exhibits. The second Wilks declaration and the declarations of Victor Chang and Tsai are attached to plaintiffs' July 8, 2010 Supplemental Brief and Reply. Chen filed a memorandum of points and authorities in opposition to the motion for sanctions (“Chen's Opp.”). Chen also filed his supporting declaration (“Chen Decl.”), his supplemental declaration (“Chen Supp. Decl.”), the declaration of Fang Chi Wu aka Annie Wu (“Annie Wu Decl.”), Annie Wu's supplemental declaration (“Annie Wu Supp. Decl.”), and the declaration of Chen's counsel Richard Hsueh (“Hsueh Decl.”). Plaintiffs and Chen also filed evidentiary objections. [See Plaintiffs' Objections to Annie Wu Decl. filed July 9, 2010; Chen's Objections to Tsai Decl. filed July 12, 2010]. Proceedings Plaintiff's allegations This action was filed on November 24, 2008. The operative complaint is plaintiffs' Fourth Amended Complaint (“FAC”), which was filed on June 8, 2010. In summary, the FAC alleges the following facts.[3] Sunrider distributes nutritional products and cosmetic products. [FAC ¶ 20]. Sunrider obtained a registered copyright from the Register of Copyrights for its product catalog on March 2, 2005. [FAC ¶ 18]. Sunrider submitted a separate product catalog copyright application on July 10, 2008, but that application is still pending. [FAC ¶ 18]. Sunrider also owns a number of registered trademarks. One trademark bears registration number 1,972,103 and is entitled “Sunrider & Design.” The mark consists of an oval shape composed of alternating white and black lines. The word “SUNRIDER” is located immediately below the oval. A second trademark bears registration number 1,898,503 and is entitled “LIFESTREAM.” A third trademark bears registration number 2,160,068 and is entitled “NUPLUS.” A fourth trademark bears registration number 1,774,030 and is entitled “TOP.” A fifth trademark bears registration number 1,884,547 and is entitled “VITALITE.” A sixth trademark bears registration number 3,464,977 and is entitled “METABOOSTER.” [FAC ¶ 20]. The trademarks are for cosmetic, herbal, nutritional, and other juice products. [FAC ¶ 20]. *2 Pursuant to a December 31, 1990 licensing agreement, Sunrider Taiwan holds an exclusive right to use these trademarks in Taiwan. [FAC ¶ 21]. Sunrider Taiwan pays Sunrider a yearly royalty equal to 5 percent of gross sales. [FAC ¶ 21]. Pursuant to a January 1, 1994 licensing agreement, plaintiff Sunrider Manufacturing, L.P. (“Sunrider Manufacturing”) holds a right to use these trademarks on products that are manufactured, packaged, promoted, and distributed and sold to Sunrider subsidiaries. [FAC ¶ 23]. Sunrider Manufacturing pays Sunrider a yearly royalty equal to 6 percent of gross receipts from sales of all products. [FAC ¶ 23]. Sunrider Manufacturing also has a right to use Sunrider's trade secrets pursuant to a July 1, 1995 licensing agreement. [FAC ¶ 24]. Sunrider, Sunrider Taiwan, and Sunrider Manufacturing are all plaintiffs in this lawsuit. They allege that the trademarks over which they have rights—whether by registration or by contract—possess “substantial value” as a result of the “hundreds [sic] millions of dollars” that have been “expended in the development, advertisement, marketing, and promotion of plaintiffs' products using Sunrider trademarks ....” [FAC ¶ 26]. This lawsuit arises out of certain actions taken by Chen and a former Sunrider employee named Steve Lee (“Lee”).[4]Lee allegedly worked with Chen, a distributor of Sunrider's products, to manufacture, distribute, offer for sale, and sell herbal, cosmetic, and nutritional products that bore Sunrider's trademarks. [FAC ¶¶ 30–32]. Lee and Chen allegedly established companies whose websites advertised images of Sunrider's products, thereby infringing Sunrider's copyright. Lee and Chen also allegedly used trademarks so similar to Sunrider's trademarks that they were likely to result in consumer confusion. Lee and Chen allegedly established and used the named entity defendants, including BHTC, Bountiful Biotech Corp. (“Biotech”), and Bountiful Natural Healing, Inc. (“Natural Healing”), as vehicles for these infringing activities. [See FAC ¶¶ 28–52]. The FAC alleges 24 claims, a number of which arise under federal law. The federal claims are as follows: (1) copyright infringement (first claim); (2) trademark infringement (second claim); (3) false designation of origin (third claim); (4) trademark dilution (twelfth claim); and (5) unfair competition (fourteenth claim). The FAC also alleges a number of state law claims. As of the date of this report, no defendant has filed an answer to the FAC. The parties' contentions Plaintiffs contend that their motion for terminating sanctions should be granted on the grounds that Chen repeatedly perjured himself in an effort to thwart discovery, failed to comply with self-executing discovery obligations imposed by the federal rules, and failed to comply with this Court's discovery orders. Plaintiffs contend that Chen's misconduct prejudiced them in ways that cannot be rectified by less drastic sanctions. [Plaintiffs' Mem. 1–10].[5] *3 Chen opposes the motion for terminating sanctions, arguing that he did not perjure himself, and that he complied with his discovery obligations and court orders. Chen also contends that plaintiffs renewed their sanctions motion strategically, in that if the motion for issue preclusive or terminating sanctions is denied, the Court may then feel “compelled” to compensate plaintiffs by awarding the full amount of attorneys' fees sought. [Chen's Opp. 1–2]. Plaintiffs have presented evidence supporting their contention that Chen knowingly made false statements under oath, and that he knowingly provided untruthful, inaccurate, or incomplete discovery responses. [Plaintiffs' Mem. 2–6]. As illustrated by the evidence described below, Chen repeatedly provided verified discovery responses and sworn statements denying that he or his family members held, or had held, any beneficial ownership interest in BHTC or had made any payments to BHTC. Plaintiffs subsequently obtained documentary and testimonial evidence that credibly and unambiguously contradicted Chen's testimony in material respects. Facts relevant to plaintiffs' motion Plaintiffs' discovery requests and defendants' responses Plaintiffs learned from California Secretary of State filings that Lee formed Biotech, a California corporation on January 31, 2008. In response to discovery requests, Lee produced stock certificates, corporate minutes and bylaws reflecting that Chen and his wife, Chan–Miao Wu (also known as Julie Chen), Lee, and his wife Mei Ju Chen (also known as Rosa Lee) each owned 25% of Biotech. [Wilks Decl. II ¶ 4; Wilks Decl. I, Exhibit (“Ex.”) D at 115 & Ex. E at 482]. Plaintiffs served their first set of requests for production on Chen on February 26, 2009. The requests sought documents reflecting or relating to, among other things, payments by Chen and other defendants to and from BHTC, BHTC's products, revenues, formation and corporate governance, its officers, directors, distributors, salespeople, creditors, debt-holders, past and present owners, specifically including any beneficial ownership interest held by Chen. [Wilks Decl. II ¶¶ 2–3 & Ex. A]. Chen served written responses to those requests on April 13, 2009. Chen served responses asserting that many responsive documents were not within his possession, custody, or control. [Wilks Decl. II ¶¶ 2–3 & Ex. A, Requests 117–118, 164, 166–169, 171]. On May 11, 2009, Chen served supplemental responses. agreeing, among other things, to produce all documents responsive to a request for all documents “constituting, reflecting or relating to any agreements, whether written or otherwise” between Chen and BHTC. [Wilks Decl. II ¶ 6 & Ex. C at 107]. No such documents have been produced. Chen's May 2009 deposition testimony On May 11, 2009, Chen testified under oath during his deposition that neither he nor any of his family members had ever had any ownership interest in BHTC. [Wilks Decl. II ¶ 5 & Ex. B at 85]. Chen also testified that he formulated BHTC's products, supervised the creation of sample products between June 2008 and September 2008, and personally conducted clinical trials. [Wilks Decl. II, Ex. B at 82–87]. Chen denied that he had any role in creating BHTC. He said that he was currently a “consultant for R & D” for BHTC. [Wilks Decl. II, Ex. B at 82–87]. Plaintiffs' September 2009 motion to compel *4 On September 4, 2009, plaintiffs filed a motion to compel further discovery responses and for monetary sanctions. Plaintiffs presented documentary evidence indicating that: (1) Chen and BHTC held Chen out in printed business and marketing materials and on its website as the company's “Chief Executive Officer” or “CEO” and an “Executive Director of Board”; (2) Chen publicly represented BHTC at numerous events, including meetings used to recruit new BHTC distributors, and was a speaker at the “grand opening” of BHTC's second office in Taichung, Taiwan; (3) Chen undisputedly held an ownership interest in defendant Biotech; and (4) Chen personally developed the formulas for products sold by BHTC, arranged for the manufacture of product samples, performed clinical trials on BHTC products, suggested that the word “Bountiful,” which is used in other companies Chen owns, be included in BHTC's name, named the BHTC products, provided BHTC with its allegedly infringing logo, and leased office space he owned and used to conduct his Sunrider distributorship to BHTC for its headquarters in Taiwan. Plaintiffs also pointed out that Chen produced no documents suggesting an “arms-length” relationship existed between him and BHTC, such as product licensing agreements, assignments, or documents reflecting his receipt of rent from BHTC. [See Plaintiff's Supp. Brief at 6–8; Joint Stipulation filed Sept. 3, 2009 at 12–14, and evidence cited therein]. Chen opposed plaintiffs' motion, arguing that plaintiffs were “overreaching,” and submitted his declaration under penalty of perjury asserting that he did not have actual possession of any responsive documents, BHTC had required him to sign a nondisclosure and confidentiality agreement, BHTC had not “authorized” him to disclose responsive documents or information, and that no documents existed reflecting any beneficial ownership interest in BHTC held by Chen. [See Wilks Decl. II ¶ 3 & Ex. F]. In his declaration opposing plaintiffs' motion, Chen stated: I am not, and never have been, a shareholder of BHTC. I do not own and never have owned any shares of BHTC. I am not and never have been an owner of BHTC. I do not and never have had a beneficial ownership interest in BHTC. I am not, and never have been, a director of BHTC, and I have never sat on its board. I am not, and never have been, an officer of BHTC. I am not, and never have been, a founder of BHTC. [See Wilks Decl. II ¶ 9 & Ex. F at ¶¶ 7–10]. Chen attested that the following statements made by plaintiffs were untrue: (1) Chen “founded, directed and hold [s] an undisclosed ownership interest in BHTC”; and (2) Chen was “using [his] relatives' ownership to conceal [his] own interest in BHTC.” [See Wilks Decl. II ¶ 9 & Ex. F at ¶ 24]. January 2010 order granting in part motion to compel On January 25, 2010, an order was filed after a hearing granting and denying in part plaintiffs' discovery motion and denying the request for monetary sanctions. As to the disputed interrogatories, the Court granted the motion and ordered Chen to serve supplemental responses providing all unprivileged responsive information known by him or reasonably available to him. The Court rejected Chen's contentions that he did not “control” information responsive to the disputed interrogatories, and that he had entered a nondisclosure agreement prohibiting him from providing responsive information. *5 As to the disputed requests for production, the Court granted the motion in part. Chen was directed to produce all unprivileged responsive documents in his possession, custody, or control, and to serve supplemental responses confirming that he had done so. Chen also was directed to provide specific information about documents that were not then in his possession, custody, or control but had been so at any time after this action was filed: a description of each such document; an explanation as to why it was no longer in his possession, custody, or control; the date on which his possession, custody, or control of the document ceased; to whom possession, custody, or control of the document was transferred; and on what date the transfer occurred. The Court explained that “[t]his information is necessary to enable plaintiffs to determine whether there may have been spoliation by Chen through destruction of responsive documents or by rendering them inaccessible.” [Wilks Decl. II ¶ 11 & Ex. G at 133]. The Court rejected as unsubstantiated Chen's assertions that producing responsive documents in his possession, custody, or control would subject him to adverse consequences pursuant to a nondisclosure agreement with BHTC and/or unidentified provisions of Taiwan law. [Wilks Decl. II ¶ 11 & Ex. G at 135]. The Court concluded, however, that plaintiffs had not met their burden to show that Chen controlled (that is, had the legal right to obtain on demand) responsive documents in the possession, custody, or control of BHTC. In making that determination, the Court noted that Chen had stated under penalty of perjury that he was “merely an employee of BHTC and had never been a shareholder, director, officer, or founder of BHTC,” and that he did not “have actual possession of any of the documents responsive to any of these requests.” [Wilks Decl. II ¶ 11 & Ex. G at 133–134]. The Court stated that plaintiffs “presented circumstantial evidence suggesting that some of Chen's statements might not be true, and that Chen might have more control over BHTC than he admits,” and concluded that “Chen plainly has a close relationship with BHTC and its management” and might have access to, or the “practical ability to obtain,” at least some of BHTC's documents. The Court concluded, however, that plaintiffs' evidence was “not sufficient to outweigh Chen's direct testimony.” [Wilks Decl. II ¶ 11 & Ex. G at 134]. Chen served supplemental responses on February 5, 2010 stating that responsive documents were in the possession of BHTC, and that BHTC stated that no documents would be provided to Chen. [Wilks Decl. II ¶ 13 & Ex. H]. In some of his supplemental responses, Chen stated that he “would have been able to obtain certain documents as an employee of BHTC,” but that following “his resignation from his employment at BHTC on March 31, 2009, [he] no longer had possession, custody, or control over any documents that would be responsive to this request.” [See, e.g., Wilks Decl. II, Ex. H at 142]. Chen did not comply with that part of the January 25, 2010 order directing him to provide five specific pieces of information with respect to each document that formerly was within his possession, custody, or control. BHTC's Taipei government filings *6 By way of background, in December 2009, plaintiffs' counsel in Taiwan, Victor Chang, submitted a request to the city of Taipei, Taiwan seeking copies of BHTC's corporate filings. [Victor Chang Decl. ¶¶ 5–6]. The requests were granted, and the Taipei government provided plaintiffs' counsel with certain BHTC corporate and shareholder records that had been filed with municipal authorities (the “BHTC's Taipei government filings”). Plaintiff's Taiwan counsel subsequently forwarded copies of some of BHTC's Taipei government filings to plaintiffs' United States counsel, prompting plaintiffs to file their April 2010 motion to reopen Chen's deposition and for other relief, including sanctions. Plaintiff's Taiwan counsel inadvertently failed to forward a complete set of BHTC's Taipei government filings until May 2010. [See Plaintiffs' Mem. 2–3; Victor Chang Decl. ¶¶ 1–13; Wilks Decl. I ¶¶ 1–3 & Exs. A, D; see also Declaration of Victor Chang filed March 15, 2010, at ¶¶ 9–11, 14]. BHTC's Taipei government filings include shareholders rosters showing that from June 19, 2008 through November 24, 2008, the date this action was filed, Chen was a registered shareholder of 200,000 shares of BHTC, and his wife, Julie Chen, was a registered shareholder of 150,000 shares of BHTC. The remaining shareholders of BHTC during this period also included Chen's sister-in-law, Annie Wu, who held 50,000 shares between June 2008 and December 2008. The 350,000 combined shares registered to Chen and his wife represented 70% of the 500,000 outstanding shares of BHTC during that period, making Chen and Julie Chen the majority shareholders of BHTC when this action was filed. [Plaintiffs' Mem. 2–3; Wilks Decl. I ¶ 3 & Ex. D at 58–66, Ex. E at 482; Wilks Decl. II ¶ 10; Annie Wu Decl. ¶¶ 1–5]. This evidence appears to be inconsistent with Chen's prior sworn statements in declarations and deposition testimony that neither he nor his “family members” had ever been owners or shareholders of BHTC. BHTC's Taipei government filings also show that as of December 1, 2008, one week after this action was filed, a new shareholder roster was issued showing that the combined number of shares registered to Chen and his wife declined by 150,000 shares, from 350,000 to 200,000, or 100,000 shares each. Concurrently, the number of shares registered to Annie Wu increased by 150,000, to a total of 200,000 shares. [Wilks Decl. I, Ex. D at 66]. Plaintiffs later learned that on or about December 7, 2008, another shareholder roster issued showing that Chen and his wife were no longer shareholders of BHTC. [See Wilks Decl. I, Ex. D at 101]. In light of the translated BHTC government filings, plaintiffs filed a motion on April 19, 2010 for: (1) an order permitting them to conduct an additional deposition of Chen to inquire about those newly discovered documents, Chen's previous testimony denying the existence of those documents, and Chen's efforts to obtain other discoverable documents from BHTC; (2) reconsideration of the January 25, 2010 order denying in part plaintiffs' motion to compel further responses to requests for production; and (3) an order for monetary sanctions, issue preclusion sanctions, and/or an order striking Chen's answer and entering his default. [See Joint Stipulation filed April 19, 2009]. *7 Along with BHTC's Taipei government filings, plaintiffs submitted a declaration from Victor Chang stating that, based on his knowledge of Taiwan law, BHTC is organized and governed by provisions of Taiwan law that authorize a shareholder to have access from the corporation to inspect and copy corporate records, including the shareholder roster and accounting documents, and also makes a shareholder a “party in interest” who may request copies of corporate documents from the municipal government of Taiwan. [Victor Chang Decl. filed April 19, 2010 at 2–4]. On April 20, 2010, Chen submitted his declaration under penalty of perjury in opposition to the motion. In that declaration, Chen said: (1) “I did not have any control nor do I have any knowledge as to how and why [the shareholder rosters] were prepared by BHTC”; (3) “I recently spoke with BHTC's chairman, Chi–Hsiung Chang [aka Charles Chang], regarding [the shareholder rosters.] He explained that the company had listed my wife and I as shareholders to show its appreciation and gesture of good will for my efforts in helping with the company's product development. However, we have never accepted such an offer to become shareholders in BHTC because I did it as a personal favor to my sister-in-law, [Annie Wu].” (4) “I am reiterating my previous declaration that I am not, and have never been, a shareholder of BHTC. I did not own and have never owned any share of [BHTC] nor have I paid any money for any ownership interest in BHTC. My wife and I have never received and to the best of my knowledge, BHTC has never issued to us any stock certificate evidencing any ownership interest.” [Wilks Decl. I, Ex. B, ¶¶ 1–5]. In orders filed May 10, 2010 and May 26, 2010, the Court granted plaintiffs permission to depose Chen for an additional day, held that plaintiffs had shown grounds for reconsideration, ordered Chen to supplement his discovery responses, awarded plaintiffs attorneys' fees in an amount to be determined, and denied Chen's cross-motion for sanctions. The Court explained: In crafting the January 25, 2010 order, the court relied heavily on the testimony of Chen. That testimony now appears to have been inaccurate, and perhaps even perjurious. Not only do the newly available records appear to contradict Chen's testimony, but his attempt to explain them away is not credible and suggests dishonesty. In any event, Chen's testimony is no longer trustworthy. [Order filed May 26, 2010 at 1]. The Court concluded that Chen's testimony must be set aside, and that “based on the totality of the evidence now available, Chen had, and still has, the requisite control to produce responsive documents in the possession, custody, or control of BHTC.” [Order filed May 26, 2010 at 2]. The Court relied on the evidence submitted by plaintiffs, and specifically on newly available records indicating that Chen and Chen's wife together owned 70% of the shares of BHTC when this lawsuit was filed, evidence indicating that any shareholder can obtain access to at least some of the records of a Taiwan corporation (such as BHTC), the apparent manipulation of BHTC's shareholder records in an attempt to insulate BHTC from discovery in this case, and by Chen's ability to obtain the cooperation of BHTC and the chairman of its board of directors when it suits him. *8 [Order filed May 26, 2010 at 2]. The Court added that it was unimportant whether Chen remained a shareholder, but whether he had responsive documents within his control when this action was filed or when the request for production was served. The Court explained that “[a] party may not sidestep its discovery obligations by deliberately rearranging its affairs to disable itself from being able to produce documents after litigation has commenced. That is tantamount to spoliation of evidence.” [Order filed May 26, 2010 at 2]. Chen was ordered to produce all remaining responsive, unprivileged documents, “including those in the possession, custody, or custody of BHTC,” as well as “the complete shareholder records of BHTC for the period January 1, 2007 to the present.” [Order filed May 26, 2010 at 2]. The Court granted in part plaintiffs' request for sanctions and held that plaintiffs were “entitled to reasonable attorneys' fees and costs incurred in connection with the underlying motion and this motion for reconsideration.” [Order filed May 26, 2010 at 2]. A determination of the amount of attorneys' fees to be awarded as sanctions was deferred pending further briefing. Plaintiffs' request for more severe sanctions was “denied without prejudice to its renewal after the deadlines fixed for Chen's compliance with this order have expired,” and Chen was “cautioned that failure to comply with this order may result in the imposition of additional sanctions, potentially including a further monetary award, issue or evidence preclusion, or entry of judgment by default.” [Order filed May 26, 2010 at 3]. On May 20, 2010, after the Court granted in part plaintiffs' motion, plaintiffs' Taiwan counsel forwarded additional BHTC government filings to plaintiffs' United States counsel. A complete set of BHTC's Taipei government filings was provided to Chen's counsel on May 24, 2010. BHTC's Taipei government filings squarely contradict Chen's prior testimony in additional, material respects. [See Wilks Decl. I, Ex. D at 58–66, 81]. One document is entitled “List of Shareholders' Payments” and reflects “payment for shares” on June 19, 2008, which was the same date on which Chen and his wife were first listed as shareholders on BHTC's shareholder roster. The “List of Shareholders' Payments” states that Chen made “payment for shares” of NT $2,000,000[6] and Julie Chen made “payment for shares” of NT $1,500,000 on June 19, 2008. [Wilks Decl. I, Ex. D at 81]. That document states that the payments were deposited in an account with Jih Sun International Bank, Sung–Jiang Branch. [Wilks Decl. I, Ex. D at 58–66, 81]. Correspondingly, a ledger of BHTC transactions shows “cash deposits” on June 19, 2008 of NT $2 million and NT $1.5 million, respectively, from Chen and Julie Chen. [Wilks Decl. I, Ex. D at 85]. On June 20, 2008, BHTC's “CPA” signed a certification stating that the CPA had “concluded the review of the balance sheet and list of shareholders' payments for shares, dated June 19, 2008 and compiled by” BHTC “for the purpose of registering its cash capital increase,” and that “[t]he review confirms that the aforementioned balance sheet is consistent with related books and documentation. [¶] The cash payment of NT $4,000,000 has been made in full. Please see attached ‘List of Shareholders' Cash Payment.’ ” [Wilks Decl. I, Ex. D at 77]. These documents contradict Chen's testimony that he and his family members were never shareholders in BHTC, never held an ownership interest in BHTC, and never made payments to BHTC in exchange for an ownership interest. *9 BHTC's Taipei government filings reflect that Chen and his wife were removed as BHTC shareholders of record as of December 7, 2008, less than two weeks after this action was filed. Annie Wu held 200,000 shares on that date, and the remaining 300,000 shares were held by Chi–Hsiung Chang, aka Charles Chang (hereinafter “C. Chang”) and Xiao–Ying Wu. [Wilks Decl. I, Ex. D at 101]. Meeting minutes, shareholder rosters, and other documents included in BHTC's Taipei government filings show that Annie Wu was a director of BHTC's board as well as a shareholder from June 19, 2008 until at least August 2009, and she served briefly as board chairman in August 2008, until Chi–Hsiung Chang took over. [Wilks Decl. I, Ex. D at 90–105]. Chen's May 2010 court-ordered deposition Chen's testimony during his additional court-ordered deposition on May 25, 2010 establishes that, contrary to his prior sworn statements, Chen knew in June 2008 that BHTC had issued shares to him and his wife in exchange for a payment to BHTC of NT $3.5 million, and that shareholder rosters identifying him and his wife as shareholders were accurate. Furthermore, there are unresolved internal inconsistencies in Chen's testimony, and inconsistencies between his testimony and other evidence, regarding the source of the funds used to pay for those shares. During his May 2010 deposition, Chen admitted that he and his wife were identified as shareholders of BHTC on shareholder rosters dated June 19, 2008, August 8, 2008, and December 1, 2008. [Wilks Decl. I, Ex. E at 482, 491–493]. Chen testified that he was unaware that he and his wife were listed on those or any other documents as shareholders until he spoke to Annie Wu by phone on the evening of the day of the parties' mediation in March 2010, when he had seen a copy of the BHTC shareholder roster identifying him and his wife as shareholders. Chen described Annie Wu as his sister-in-law of 31 years. He said he had a good relationship with her and had always been close to her. [Wilks Decl. I, Ex. E at 452]. Chen knew “all along” that Annie Wu also was a shareholder of BHTC. [Wilks Decl. I, Ex. E at 452–453]. Chen testified that Annie Wu told him in or about March 2010 that the shares had been assigned to him and his wife in “appreciation for the assistance that we accorded them,” and “because they were hoping I would continue to support the company, that I would participate more in the company.” Chen also testified that Annie Wu told him that the assignment of the shares was withdrawn on December 7, 2008 because “all along I had no intention to participate in” BHTC. [Wilks Decl. I, Ex. E at 482–487]. On further examination, Chen admitted that the List of Shareholders' Payments and the ledger (document control numbers SR12747 and SR 12751) showed that on June 19, 2008, he and his wife had wired funds to BHTC and deposited the total sum of NT $3.5 million in BHTC's bank account. Asked if he or his wife ever wired money to BHTC, Chen said “[n]ever.” [Wilks Decl. I, Ex. D at 81, 85 & Ex. E at 489–494]. Chen testified that in June 2008, the sum NT $3.5 million was equal to about $100,000 or $110,000 in United States dollars, and that he and his wife had cash in that amount available to them at the time. [Wilks Decl. I, Ex. E at 489–491, 587]. Chen testified that a document reflecting minutes of a meeting of BHTC's board of directors on June 13, 2008 states that the three directors present authorized a capital increase of NT $4 million by issuance of 400,000 shares of BHTC at NT $10 per share, and that it was agreed that payment in full for those shares was due by June 19, 2008. [Wilks Decl. I, Ex. D at 91 & Ex. E at 497]. Asked if any of the documents he had reviewed “stated that BHTC was making a gift of shares to you or to your wife,” Chen admitted that nothing about a gift of shares was reflected in those documents. [Wilks Decl. I, Ex. E at 499]. Chen has produced no documentary evidence memorializing a gift of shares to him and his wife from Annie Wu, BHTC, or any other source. *10 Later during his deposition, Chen testified that Annie Wu actually told him in June 2008 that BHTC was giving stock to him and his wife. [See Wilks Decl. I, Ex. E at 482–487, 564–566, 592–593]. That testimony directly contradicts his prior sworn statements that he and his family members had never been BHTC shareholders or owners, as well as his sworn testimony that he did not know about the “gift” of BHTC shares to him and his wife until he saw a copy of a shareholder roster with their names on it in or around March 2010. Chen testified that he did not ask Annie Wu how much stock BHTC was giving him and his wife in June 2008 because he was “not interested.” Chen said that he did not take any steps to prevent issuance of the shares in their names, nor did he follow up with anyone else in the company to prevent the gift. [Wilks Decl. I, Ex. E at 564–569]. Chen testified that Annie Wu also told him in June 2008 that she had paid cash for the BHTC shares issued to Chen and his wife totaling NT $3.5 million. [Wilks Decl. I, Ex. E at 588–589, 592]. He said that Annie Wu “made these arrangements about the shares to thank me. She was hoping I would try the very best I could do to help her, because she never had a chance to get in the business to support herself.” [Wilks Decl. I, Ex. E at 563]. Chen explained that he had promised Annie Wu's late husband before his death that he would take care of her. He also testified that Annie Wu had no source of income during 2007 and 2008, and that he did not give her any financial support. [Wilks Decl. I, Ex. E at 563, 586, 590]. Chen testified that at some point in time, two of his sisters-in-law (Annie Wu and Wu Shou Yen) and his mother-in-law were owners and directors of BHTC, and that he knew this because Annie Wu had told him so. [Wilks Decl. II, Ex. B at 92–95]. That testimony is inconsistent with his prior sworn statements that his family members were not and never had been shareholders or owners of BHTC. Chen was asked about bank statements showing wire transfers to Annie Wu from his company, King Shop International, of $100,000 in July 2007 and $100,000 in January 2008. Chen said that as far as he knew, the bank statements were accurate. He testified that his wife made the transfers, and that he did not know what the July 2007 transfer was for, but he “suspected” or “speculated” that it had something to do with remodeling office space Chen owned and leased to BHTC in exchange for the payment of rent. [Wilks Decl. I, Ex. E at 413–414, 429, 449, 500–502, 587–588]. Asked if he had given Annie Wu “any money for any other reason other than to do the remodeling,” Chen said that his wife “did the wire transfers, so I'm not familiar with the specifics.” [Wilks Decl. I, Ex. E at 587]. Chen testified that he was not sure what the January 2008 transfer of $100,000 was for, but “suspect[ed] it was for the purchase of land” in Hualien. [Wilks Decl. I, Ex. E at 502]. Chen testified that the cost of remodeling BHTC's office space and the cost of the BHTC shares assigned to him and his wife together cost about $200,000. [Wilks Decl. I, Ex. E at 586–587]. Chen testified that it was “impossible” that Annie Wu had used those funds for the stock purchase. [Wilks Decl. I, Ex. E at 590]. *11 Contradicting his earlier sworn deposition testimony that Annie Wu and C. Chang told him that the shares were a gift in appreciation for his assistance, Chen testified that Annie Wu told him the shares were put in his and his wife's names “[b]ecause it was the government's regulations that you had to have names in order for you to put together a shareholder roster.” [Wilks Decl. I, Ex. E at 590]. Asked why she did not put the shares in her own name, Chen gave a nonresponsive reply: “Later on it all became hers. After they were withdrawn, she became the majority shareholder.” [Wilks Decl. I, Ex. E. at 590]. Chen testified that he did not ask Annie Wu where she obtained NT $3.5 million in cash to buy BHTC shares for him and his wife. [Wilks Decl. I, Ex. E at 588–591]. In a subsequent declaration, Chen testified that Annie Wu borrowed money from him to buy the shares that she then gave as a gift to Chen and his wife. [Chen Supp. Decl. ¶ 4]. Chen testified that as far as he knew, the shareholder roster showing him and his wife as the majority shareholders of BHTC from June 2008 to December 2008 was accurate. [Wilks Decl. I, Ex. E at 593]. Chen said that Annie Wu told him that the shares were transferred out of their names in December 2008 because C. Chang joined the company, and the shares were given to him. [Wilks Decl. I, Ex. E at 593–594]. BHTC's Taipei government filings, however, include board of director meeting minutes indicating that C. Chang was elected chairman in August 2008. [Wilks Decl. I, Ex. D at 94–95]. Asked whether “BHTC change[d] its books to say that you and your wife no longer own shares in the company” shortly after this action was filed, Chen answered “yes.” [Wilks Decl. I, Ex. E at 594]. Chen further testified during his deposition that he made two verbal requests in 2009 to C. Chang, BHTC's chairman, for documents responsive to plaintiffs' discovery requests, but C. Chang refused those requests. Chen said that, to the best of his recollection, he never asked Annie Wu for documents. Chen said that his first written request for documents was made to C. Chang in an email in March or April 2010. Chen subsequently produced a copy of an email to C. Chang dated February 3, 2010 requesting documents. [Hsueh Decl. ¶ 4 & Ex. B]. Chen testified that C. Chang told him that he would not provide requested documents because “this was the company's internal trade secret,” and Chen admitted that he agreed with C. Chang's refusal to produce documents on all three occasions. Chen explained that he “did not disagree with him.... Because he was the owner of the company, it was right for [C. Chang] to make that decision.” [Wilks Decl. I, Ex. E at 455–462]. Chen's court-ordered supplemental responses and production of documents On June 7, 2010, prior to the deadline for compliance set by the Court, Chen served court-ordered supplemental responses to plaintiffs' document requests. In response to most of the outstanding document requests as to which plaintiffs' motion to compel was granted, Chen responded that he “will produce all documents responsive to this request that he has received from BHTC.” [See Wilks Decl. II ¶¶ 9–10 & Ex. F; Plaintiffs' Supp. Brief 13–14]. Chen's supplemental production consisted of some BHTC product samples and about 200 pages of Chinese-language documents, including some 136 pages of documents that Chen knew plaintiffs had, namely, copies of some of BHTC's Taipei government filings and printouts of publicly accessible information taken from BHTC's website after this action was filed. Chen also produced tax filings and a distributor list indicating that BHTC recruited 283 of Sunrider's distributors in Taiwan. Up to that point, only seventeen such distributors were known to plaintiffs. Chen did not provide explanations for documents no longer in his possession, custody, or control, as the Court had previously ordered. [See Wilks Decl. II ¶¶ 9–10 & Ex. F; Plaintiffs' Supp. Brief 13–14]. *12 Based on deficiencies and discrepancies that plaintiffs identified in the record as augmented by Chen's deposition and his supplemental production, plaintiffs filed this renewed motion for sanctions on June 9, 2010. Chen's belated further supplemental production On July 1, 2010, after the deadline for compliance with the May 2010 discovery order had passed and one day before his opposition to the renewed sanctions motion was due, Chen belatedly produced additional documents written in Mandarin Chinese. According to representations made to plaintiffs' counsel by Hsueh, Chen's counsel, as well as the declaration of Jui–Chieh Tsai submitted by plaintiffs, these additional documents consist of bank account records for the three bank accounts with Jih Sun Bank in Taiwan: Chen's personal bank account [Wilks Decl. II ¶ 24 & Tsai Decl., Ex. A]; BHTC's bank account [Wilks Decl. II ¶ 25 & Tsai Decl., Ex. B]; and the bank of account of a Taiwan company owned by Chen called Jin Fang Biotech Corp. (“Jin Fang”). [Wilks Decl. II ¶ 26 & Tsai Decl., Ex. C; Chen Supp. Decl. ¶ 3]. In her supporting declaration, Tsai states that she is a Sunrider employee who had lived in Taiwan from birth through age 29, obtained bachelor's and master's degrees in law there, and earned an L.L.M. degree from Brigham Young University. Tsai states that she reads and understands both Mandarin Chinese and English, and that she had been asked by plaintiffs' counsel to review plaintiff's supplemental document production made in June and July 2010. Her declaration translates some portions of those documents and describes and summarizes the document production in other respects. [Tsai Decl. ¶¶ 1–3, 24–28].[7] Tsai states that the bank records produced on July 1, 2010 show that Chen, Lee, and their wives Julie Chen and Rosa Lee each deposited NT $1,250,000, for a total of NT $5 million, into Chen's Jin Fang bank account on June 13, 2008. [Tsai Decl. ¶¶ 1–12 & Ex. C]. Days later, on June 19, 2008, NT $4,050,000 was withdrawn from the same Jin Fang account, and three cash transfers totaling NT $4,000,000 were deposited into BHTC's account. The deposits are identified as made by Chen, Julie Chen, and Annie Wu in the sum of NT $2 million, NT $1.5 million, and NT $500,000, respectively. Those sums correspond to the exact value, in New Taiwan dollars, of the June 19, 2008 BHTC share purchases in the names of Chen, Julie Chen, and Annie Wu. [Wilks Decl. II ¶¶ 27–28; Tsai Decl. ¶ ¶ 1–14 & Ex. C]. On June 25, 2008 and June 26, 2008, a total of NT $3 .1 million in cash was withdrawn from BHTC's bank account. On June 26, 2008, a deposit of NT $1 million was made to Chen's Jin Fang account. [Tsai Decl., ¶¶ 15–16 & Exs. B, C]. In addition, Chen's personal bank records reflect transfers into BHTC's bank account of sums ranging from NT $300,00 to NT $800,000 on the following dates: April 3, 2008; June 16, 2008; September 2, 2008; October 6, 2008; and October 27, 2008. The total sum transferred from Chen's personal account to BHTC's account between April 3, 2008 and October 27, 2008 was NT $2.6 million. [Tsai Decl. ¶¶ 18–19 & Ex. A]. Chen's counsel represented to plaintiffs' counsel that these sums withdrawn from Chen's personal bank account were used to pay BHTC's operating expenses, and that Chen was repaid the sum of NT $800,000. [Wilks Decl. II ¶ 29]. *13 Chen's personal bank account records also show a number of transfers between August 6, 2007 and September 21, 2007 totaling NT $6,061,000 from Chen's personal account to bank account number 00210024251700, which, according to representations made by Chen's counsel, is Annie Wu's bank account. [Wilks Decl. II ¶ 28; Tsai Decl. ¶ 23 & Ex. A]. BHTC's Taipei government filings indicate that BHTC was formed in November 2007. [See Wilks Decl. I, Ex. D at 67–74, 107]. Chen's contentions In opposition to plaintiffs' motion, Chen argues that he did not make culpable false statements and complied with his discovery obligations and discovery orders. He also has submitted declarations from himself and Annie Wu attempting to overcome, reconcile, or explain away the evidence presented by plaintiffs. For example, Chen argues that plaintiffs' Taiwan attorney Victor Chang “made a misleading if not perjured declaration” filed on March 15, 2010 in support of plaintiffs' motion to compel and for sanctions in which he stated that “the records provided by Taipei City do not reflect any changes to the BHTC shareholder information since December 1, 2008.” [Chen's Opp. 2–3; Victor Chang Decl. ¶ 25]. Chen argues that this declaration is contradicted by a shareholder roster dated December 5, 2008 showing that Chen and his wife were removed as shareholders of BHTC. [Wilks Decl. I, Ex. C at 52 & Ex. D at 101]. Victor Chang responded with a declaration under penalty of perjury explaining that due to inadvertence, he based his March 2010 declaration on an incomplete set of BHTC's Taipei government filings, and forwarded that incomplete set to Fred Wilks, plaintiffs' United States counsel, before recognizing and rectifying that error by forwarding a complete set of those documents to Wilks in May 2010. Plaintiffs then produced copies of those documents to Chen's counsel. Chen acknowledges that he received the December 5, 2008 shareholder roster from plaintiffs after the date of Chang's declaration. [Chen's Opp. 2]. Plaintiffs also point out that the December 5, 2008 shareholder roster tends to support rather than undermine their contentions because it suggests manipulation of the shareholder roster to remove Chen and his wife as BHTC shareholders of record after this action was filed. Plaintiffs have adequately rebutted Chen's arguments regarding Victor Chang's declaration. Chen's contention that the declaration was materially misleading and perjurious is rejected. Chen also argues that he did not perjure himself or willfully disobey a court order. [Chen's Opp. 3–8]. First, he faults plaintiffs for providing “no explanation as to why” Victor Chang “sat on” BHTC's Taipei government filings “for over six months” before delivering them to plaintiffs. Plaintiffs filed Victor Chang's declaration in support of this motion explaining his inadvertent delay in sending a complete set of documents to Wilks. Wilks also states that he did not fully understand the import or source of the Chinese language documents when he first received them, and retained a certified interpreter to prepare formal translations, which were completed on or about June 3, 2010. Wilks also notes that Chen produced BHTC's copy of the same records after learning that plaintiffs had copies of those records. Chen's ability to belatedly produce BHTC's copies is further evidence that Chen had at least the “practical ability” to obtain and produce documents from BHTC responsive to plaintiffs' discovery requests during the course of discovery. Instead, plaintiffs were forced to expend needless time, effort, and expense to request documents from a foreign governmental authority. [See Wilks Decl. I ¶¶ 6–7 & Exs. C, D; Plaintiffs' Supp. Brief at 9]. *14 Any suggestion that the belated appearance of these documents has prejudiced Chen because they unexpectedly may have exposed his material misstatements or omissions is, of course, rejected. Accordingly, there is no merit to Chen's contention that plaintiffs intentionally delayed producing those documents and caused him prejudice. Second, Chen argues that plaintiffs' “entire perjury theory” rests on their contention that Chen made two unexplained wire transfers of $100,000 each from Chen's King Shop International account to Annie Wu's personal account in July 2007 and January 2008, and that Annie Wu may have used those funds to purchase the BHTC shares that were issued to Chen and his wife. Chen argues that he explained during his deposition that one of the transfers was used for a land purchase, and the other for office remodeling expenses. [Chen's Opp. 5–6]. Chen also contends that Annie Wu's sworn declaration testimony adequately explains those transfers. Chen's premise is faulty because plaintiffs' “perjury theory” does not rely solely on the July 2007 and January 2008 transfers, which are but two pieces of the larger puzzle created by discrepancies in the evidence described in detail in plaintiffs' motion. Chen, moreover, did not adequately explain the reason for those transfers during his deposition. Asked what the first transfer was for, he testified “I don't know,” but said he “suspected” or “speculat[ed]” that it may have been for office remodeling expenses. He also said his wife made the transfer. Similarly, Chen testified that he was “not sure” what the second transfer was for but “suspected” that it was used for a land purchase. [Wilks Decl. I, Ex. E at 500–502]. Chen submitted his own declaration and the declaration of Annie Wu in opposition to plaintiffs' motion. In his declaration, Chen states under penalty of perjury that Annie Wu “has been the sole person that I use to take care of my personal and business affairs in Taiwan,” and that Annie Wu has “full access to my personal and business accounts,” including the ability to transfer and withdraw funds. [Chen Decl. ¶ 2]. He further states that due to his “busy schedule and out of habit, I do not involve myself with finances, personal or otherwise, unless there is a problem.” [Chen Decl. ¶ 2]. Chen attests that if Annie Wu had questions or needed instructions, she would discuss the matter with her sister, Chen's wife, who “manages and deals with” family and business finances. Chen also says that Annie Wu maintained the documents relating to his accounts in Taiwan. [Chen Decl. ¶ 2]. Chen next attests that Annie Wu previously told him that there was no money transferred between his account and BHTC's account, and that he “relied on her representation in my discovery response.” [Chen Decl. ¶ 3]. Chen says that Annie Wu subsequently disclosed to him that she “borrowed some money from my personal account” in the sum of NT $2,600,000, or about $80,000, and “deposited the money to BHTC's account to cover BHTC's expenses. She did not inform me about the transactions because she thought that I had previously indicated I would support her in her business and that she had thought BHTC would be able to repay her quickly.” [Chen Decl. ¶ 3]. Chen says that Annie Wu has “reimbursed” his account in the amount of NT $800,000. [Chen Decl. ¶ 3]. *15 Chen also submitted Annie Wu's declaration. At paragraph 2 of her declaration, Annie Wu states: I have spoken to Mr. Hsueh [Chen's counsel] in Chinese Mandarin regarding the substance and content of this declaration. Although my English is limited, I have been provided with a translation and explanation of this declaration and based on that translation understood and agreed with the content of this declaration. [Annie Wu Decl. ¶ 2]. Plaintiffs' objections to Annie Wu's declaration Plaintiffs object to Annie Wu's July 2, 2010 declaration in its entirety under Rule 901 of the Federal Rules of Civil Procedure for lack of foundation on the ground that there is no evidence that Annie Wu actually read and understood her declaration because no Chinese translation of the declaration was provided nor any declaration or other evidence establishing what Annie Wu was told in Chinese about the content of her declaration. Plaintiffs also argue that the declaration is inadmissible hearsay under Rule 801 to the extent that Chen's counsel is tendering the declaration as a representation of an out-of-court conversation he had with Annie Wu. [Plaintiffs' Objections to Annie Wu Decl. filed July 9, 2010]. “Witness testimony translated from a foreign language must be properly authenticated and any interpretation must be shown to be an accurate translation done by a competent translator.” Jack v. Trans World Airlines, Inc., 854 F.Supp. 654, 659 (N.D.Cal.1994) (citing Fed.R.Evid. 604[8] and 901[9]). In Jack, the court held that English-language translations of signed foreign-language affidavits were inadmissible, even though the offering party submitted a certification by an individual at a local translation center that the translations were “true and correct,” because the certification was not a sworn statement, does not describe the maker's qualification or expertise regarding language translation, does not state whether the maker did the translations, and does not explain the circumstances under which the affiants signed the affidavits in two languages (e.g., whether the affiants were advised of the content of the English-language affidavits before signing them). Jack, 854 F.Supp. at 659; see also Fonseca v. Hall, 568 F.Supp.2d 1110, 1125 (C.D.Cal.2008) (holding that English-language translations of Spanish-language declarations were inadmissible because “the translations are not by certified interpreters, or any identified person; thus, they are not properly authenticated and, as such, are inadmissible”) (citing Jack, 854 F.Supp. at 659); cf. Rosario–Guerrro v. Orange Blossom Harvesting 265 F.R.D. 619, 623–624 (M.D.Fla.2010) (overruling objections to the admissibility of declarations translated from Spanish to English offered in support of class certification where the interpreter filed a declaration stating that he was bilingual in Spanish and English, had served as an interpreter in workers' compensation hearings, translated the declarations word-for-word from English to Spanish, read the declarations in Spanish to each declarant, who in turn confirmed to him that the information in the declaration was true and executed the English language version of the declaration). *16 Annie Wu's declaration states that it is based on “personal knowledge.” The declaration also states that her English was limited, that she had spoken in Mandarin Chinese to Chen's counsel Hsueh, and she understood and agreed with the content of her declaration based on the “translation and explanation” of its content provided to her. During the hearing on this motion, Chen's counsel represented that “a full translation of the declaration” had been prepared in Chinese for Annie Wu “so she understands what was stated in the declaration, to the extent that there's technical stuff in there she doesn't understand.” [Transcript of July 16, 2010 hearing at 4–7]. In response to the Court's questions, Chen's counsel said that the translation had been prepared by an unnamed assistant in his office who was not a certified translator. Chen's counsel represented to the Court that the English-language version of Annie Wu's declaration was accurate. The Court responded: “I need proof. I don't need representations by counsel in court. I need facts and evidence on which I can rely.” [Transcript of July 16, 2010 hearing at 6]. Chen's counsel offered to file the Chinese-language translation in court, but he made no attempt to do so after the hearing was concluded. There is no evidence that either Hsueh or the office assistant whom he said prepared a Chinese-language translation of the declaration are competent translators. There is no evidence that Annie Wu's declaration was translated from English into Mandarin Chinese word-for-word, or accurately and completely. There is no Chinese-language version of her declaration in the record which plaintiffs could read or translate into English if they wished to test the accuracy of Annie Wu's declaration in English. Accordingly, the English-language translation of her testimony lacks foundation and is inadmissible. Plaintiffs' objection to Annie Wu's declaration pursuant to Rule 901 is sustained.[10] Moreover, Annie Wu's declaration would not significantly alter the factual or legal analysis relevant to this sanctions motion even if it were admissible. Annie Wu states that after Chen and his family moved to the United States in 1990, she “became the sole person in Taiwan who would assist [Chen] in managing both his personal and Sunrider distribution business affairs in Taiwan,” and therefore she has access to Chen's bank account in Taiwan, can telephonically transfer funds using a special pass code and can withdraw or deposit funds using Chen's seal or the seal of his business. [Annie Wu Decl. ¶¶ 6–8]. Annie Wu says that she used the June 18, 2007 wire transfer of $100,000, which was converted to about NT $3,200,000, to make installment payments on real estate purchased by Chen. [Annie Wu Decl. ¶ 7 & Ex. A]. She states that she deposited funds from the second wire transfer of $100,000, which was converted to about NT $3,244,751, into Chen's personal account at Jih Sun Bank and used those funds throughout 2008 for “office remodeling, office expenses, etc.” [Annie Wu Decl. ¶ 8 & Ex. B]. Annie Wu states that “[n]one of this money was used to purchase any shares in BHTC” for Chen or his wife. [Annie Wu Decl. ¶ 8]. *17 Annie Wu's version of the facts surrounding the BHTC share purchase is as follows. She was elected to BHTC's board of directors on June 12, 2008. On June 13, 2008, the BHTC board decided to raise additional working capital of NT $4,000,000 by offering additional shares for purchase by employees and investors at NT $10 per share. Annie Wu did not have enough money to buy shares, so she asked Chen if she could borrow NT $4,000,000 to purchase shares. Chen agreed she could borrow the money from one of his companies, Jin Fang. She told him that once the shares were issued, she could withdraw most of the money and repay him. It is a common practice in Taiwan for shareholders of small companies to withdraw their capital contribution after the shareholder list has been filed with the government. On June 19, 2008, using Jin Fang's corporate seal, Annie Wu withdrew NT $4,050,000 from its bank account and deposited that sum into the bank account of BHTC to purchase the 400,000 shares that were being offered by BHTC. Annie Wu instructed BHTC's outside paralegal service to allocate 200,000 shares to Chen and 150,000 to his wife for reporting purposes by BHTC's outside CPA. She did so to show her appreciation because Chen and his wife “had been very helpful and encouraging in assisting [her] since [her] husband passed away in 2005,” and she “figured that if BHTC became profitable, then my sister and her husband would share in the success.” [Annie Wu Decl. ¶ 12]. Sometime in June 2008, after allocating the shares to Chen and his wife, Annie Wu mentioned “that BHTC and Annie Wu wanted to offer shares to him and his wife to show our appreciation in supporting BHTC,” but Chen was “not interested in the shares as they were just trying to help me.” [Annie Wu Decl. ¶ 13]. On June 25, 2008, and June 26, 2008, Annie Wu withdrew NT $2,100,000 and NT $1,000,000 in cash from BHTC's bank account and repaid that amount to Chen. [Annie Wu Decl. ¶¶ 11, 13 & Ex. F; see also Tsai Decl. ¶¶ 15–16 & Ex. B at 25]. The sum of NT $1,000,000 was deposited back into Jin Fang's account on June 26, 2008. Of the $2,100,000, $1, 100,000 was deposited into the account of “Bountiful Well Biotech Corp.,” at Chen's direction, and the other $1,000,000 was wired to Shih–Jie Chen, who had borrowed $1,000,000 from Chen to invest in Bountiful Well Biotech Corp. [Annie Wu Decl., ¶ 14 & Ex. F]. In or about November 2008, Annie Wu began negotiating with C. Chang about the possibility of his working full time at BHTC as its chairman due to expansion of the business. As an incentive, Annie Wu offered C. Chang 200,000 shares of BHTC stock so he would not have to make any capital contribution. Since Chen and his wife were not interested in the BHTC shares Annie Wu had allocated to them, Annie Wu reassigned a portion of their shares to Chang. On or about December 1, 2008, Annie Wu reassigned to herself 100,000 shares from Chen and 50,000 shares from his wife, leaving each of them with 100,000 shares in BHTC to be reassigned to Mr. Chang. This was reflected in the BHTC's shareholder list dated December 1, 2008. [Annie Wu Decl. ¶ 15 & Ex. G]. *18 After C. Chang agreed to work full time for BHTC, Annie Wu reassigned the Chens' remaining 200,000 shares to C. Chang. This was reflected in BHTC's shareholder list dated December 5, 2008 [Annie Wu Decl. ¶ 16 & Ex. H]. Annie Wu thought she “had produced all of BHTC's documents to [Chen and Hsueh] that were identified in the list to the extent that BHTC had such documents.”[11] [Annie Wu Decl. ¶ 17]. However, shortly before Annie Wu signed her declaration, Chen asked her about certain transactions in his personal account. In response, she disclosed to Chen that in 2008, on her own initiative and without informing him, she had transferred and deposited money from his account into BHTC's bank account. Annie Wu did this on five separate occasions. The transferred funds, which totaled about NT $2,600,000, were intended by Annie Wu as “temporary loans to be used by BHTC to cover its operating expenses.” [Annie Wu Decl. ¶ 17]. On July 16, 2008, Annie Wu borrowed NT $800,000 from her mother to repay the first withdrawal that Annie Wu had made from Chen's account and deposited that sum directly into Chen's account. [Annie Wu Decl. ¶ 17]. Annie Wu thought BHTC could repay the remaining funds quickly so there would not be a problem with Chen's account. Because of the lawsuit filed by Sunrider in Taiwan, however, BHTC lost most of its business and therefore did not have the resources to repay the money that Annie Wu had borrowed from Chen's account. Annie Wu is still trying to find a way to repay Chen. [Annie Wu Decl. ¶ 17]. Since Annie Wu was managing Chen's personal bank account in Taiwan, he had previously asked her whether there was any money that went from his account to BHTC. Since BHTC had only repaid NT $800,000 of the NT $2,600,000 that Annie Wu had transferred from Chen's account to BHTC, Annie Wu was too embarrassed to tell Chen about the transfers she had made. Instead, Annie Wu told him that there were not any. She “now realize[d] the mistake that [she had] made in not making a full disclosure” and “recently provided the bank passbook records of BHTC and Chen which reflect the transfer of the funds mentioned above.” [Annie Wu Decl. ¶ 18]. Even if Annie Wu's declaration were admissible, both her testimony and Chen's corroborating declaration contain and reflect unresolved inconsistencies and discrepancies that undermine their credibility. For example, Annie Wu said she had no money to buy shares. Chen testified during his deposition that she had no source of income in 2007 or 2008, that he had not given her financial support, and that he had no knowledge of the specifics of any transfers of funds to Annie Wu. Despite not having any income or money of her own to buy shares and despite not, according to Chen's testimony, receiving any financial support from him, Annie Wu said that she borrowed a very substantial sum of money from Chen to purchase 400,000 BHTC shares. She then proceeded to give 350,000 of those shares as an unwanted gift to Chen and his wife. Annie Wu says that she told Chen she had purchased the shares and was giving them to him and his wife in June 2008, contradicting Chen's earlier sworn testimony denying that he, his wife, or Annie Wu were shareholders of BHTC and denying that he was aware that he and wife were listed by BHTC as shareholders. Even though Chen and his wife were “not interested” in the gift, Annie Wu left the shares in their names until just a few days after this action was filed, when she arranged to have their shares reassigned for reasons she maintains are completely unrelated to this lawsuit. *19 Soon after buying the shares, Annie Wu says that she “withdrew” from BHTC's account the sum of NT $3,100,000 to repay Chen, representing all but NT $900,000 of the borrowed capital she had only just contributed to BHTC in exchange for shares. If Chen merely made a loan to Annie Wu, this means that Annie Wu, a board member and officer of BHTC, drained from the corporate coffers most of the NT $4,000,000 in “additional working capital” that had been raised days earlier by issuing the 400,000 additional shares. [See Annie Wu Decl. ¶ 10 & Ex. D]. That makes little sense. It makes much more sense if Chen in fact controlled those funds and controlled BHTC. As partial repayment to Chen, Annie Wu says she made a deposit of NT $1,000,000 into Chen's Jin Fang bank account on or about June 26, 2008. She also says that she repaid the additional sum of NT $2,100,000 by making transfers of NT $1,100,000 and NT $1,000,000, respectively, to Bountiful Well Biotech Corp. and Shih–Jie Chen, to whom Chen was lending money to invest in that company. Annie Wu says that she made those transfers “at Mr. Chen's direction,” a fact that appears to be inconsistent with Chen's contemporaneous declaration stating that he “did not involve [himself] with finances” and that his wife was the person who gave Annie Wu instructions regarding transfers and management of his accounts. [Chen Decl. ¶ 2]. Annie Wu does not indicate that she ever repaid the balance of NT $900,000 left on her NT $4,000,000 “loan” from Chen. Annie Wu said that she began negotiating with C. Chang in November 2008 to “work full time as chairman due to the business expansion.” [Annie Wu Decl. ¶ 15]. This assertion is inconsistent with BHTC's board of director meeting minutes showing that C. Chang was elected board chairman in August 2008. [Wilks Decl. I, Ex. D at 95 (“All directors present agree to elect Chi-hsiung Chang as board chairman.”) ]. He was identified by that title in subsequent meeting minutes, none of which mention any change in his duties as chairman. [Wilks Decl. I., Ex. D at 95–100]. Despite Annie Wu's lack of income and professed desire to make a gift of appreciation to her sister and brother-in-law for their assistance, Annie Wu took 200,000 BHTC shares out of their names. She reassigned those shares to C. Chang on or about December 5, 2008, a few days after this action was filed. She described those shares as an “incentive” to C. Chang to work full-time as board chairman even though C. Chang had been elected to that position a few months earlier and had not been asked to make a capital contribution, at least not according to the board meeting minutes. Annie Wu also reassigned to herself the remaining 150,000 shares she ostensibly had given as a gift to Chen and his wife. She makes no attempt to explain the timing of, or reason for, the transfer of shares back to herself. The reassignment of BHTC shares from Chen and his wife to Annie Wu and C. Chang were completed within two weeks of the date this action was filed. Moreover, Chen's personal bank records appear to show a deposit of NT $800,000 into Chen's personal account from Annie Wu's account number 00210024251700 on December 2, 2008, at about the same time the shares that were in Chen and his wife's name were reassigned to Annie Wu and C. Chang. [Tsai Decl. ¶ 20 & Ex. A at 16; Annie Wu Decl. ¶¶ 15–18]. Annie says nothing about the December 2, 2008 transfer of NT $800,000 to Chen in her declaration. *20 Annie Wu next says that she thought she had produced all of BHTC's documents requested by Chen and Hsueh. [Annie Wu Decl. ¶ 17]. Annie Wu's ability to obtain and produce responsive BHTC documents to Chen at his request contradicts Chen's discovery responses and testimony stating that he did not control those documents and lacked the ability or authority to obtain them during the course of discovery, irrespective of C. Chang's refusal to cooperate and Chen's admitted agreement with that refusal. Annie Wu also states that after Chen inquired about transfers to BHTC from his personal account, she disclosed to him that in 2008, she made several large transfers from Chen's personal account to BHTC on her own initiative, without informing him. Annie Wu testified that she intended these transfers as “temporary loans to BHTC to cover its operating expenses.” [Annie Wu Decl. ¶ 17]. Annie Wu contends that she repaid NT $800,000 of that amount on BHTC's behalf in July 2008, but that the rest of BHTC's debt to Chen remains outstanding. [Annie Wu Decl. ¶¶ 17–18]. Annie Wu's testimony does not excuse Chen's failure to review and timely produce records that reflect payments to BHTC or otherwise are responsive to plaintiffs' document requests, which included a request for documents reflecting or relating to “any payments of money of any type whatsoever from any defendant to” BHTC. [See Wilks Decl. II, Ex. A at 71, Request 194]. Chen was twice ordered to produce documents responsive to that request; the first time, he was ordered to produce responsive documents in his possession, custody, or control, and the second time he was ordered to produce responsive documents within BHTC's possession, custody, or control. [Wilks Decl. II, Exs. G & I]. Annie Wu does not claim that she concealed the transfers, embezzled funds, or otherwise prevented Chen from discovering what he could have learned from a cursory review of his personal bank statements. Annie Wu's assertion that she made the “loans” believing BHTC could quickly repay them is difficult to reconcile with the notion that she needed to “borrow” repeatedly from Chen merely to meet BHTC's operating expenses and that most of the additional working capital raised from BHTC's June 2008 stock offering already had been depleted so that Annie Wu could “repay” Chen for her purchase of shares. In sum, Annie Wu's testimony is inadmissible, but even if it were admitted, her declaration testimony lacks credibility. Supplemental declarations of Chen and Annie Wu On July 15, 2010, one day before the hearing on plaintiffs' motion for terminating sanctions, Chen was granted permission ex parte to file his supplemental declaration and that of Annie Wu. In her supplemental declaration, Annie Wu again declared that she spoke to Hsueh and “understood and agreed with the content of this declaration” based on a “translation and explanation of this declaration” provided to her. [Annie Wu Supp. Decl. ¶ 2]. Attached to Annie Wu's supplemental declaration are exhibits consisting of additional Chinese-language documents from BHTC that apparently are responsive to plaintiffs' discovery requests. Annie Wu states that some, but not all, of these documents have been produced to Chen; it is unclear whether they previously were produced to plaintiffs. Annie Wu attempts to identify and explain some of those documents. *21 During the hearing on this motion, plaintiffs objected to Annie Wu's supplemental declaration on the same ground as her earlier declaration, but they also argued that if the declaration is considered, it shows defendants “digging themselves deeper.” [Transcript of July 16, 2010 hearing at 3–4]. The objection to Annie Wu's supplemental declaration is overruled. To the extent that she represents that the exhibits attached to her declaration are BHTC balance sheets and corporate income tax filings, her testimony appears to be credible because the uncontroverted evidence shows that Annie Wu was a member of BHTC's board of directors who could read and understand the Chinese language documents attached to her declaration. Furthermore, the original documents are attached, and there does not appear to be any dispute about what these documents are. Annie Wu also states that a notice was filed with the government of Taiwan on or about August 28, 2009 terminating BHTC's multi-level marketing business as of September 1, 2009, and that all but three employees were laid off in October 2009. By the end of December 2009, Annie Wu states that only she and C. Chang remained at BHTC. [Annie Wu Supp. Decl. ¶ 4]. Annie Wu also says that “non-essential documents were discarded” by BHTC “if they were deemed to serve no purpose” in connection with BHTC's termination of its multilevel marketing business. [Annie Wu Supp. Decl. ¶ 4]. Her testimony on this point is reliable because it is essentially an admission of wrongdoing by her, by Chen, and by BHTC, specifically, the spoliation of documents that they were obligated to preserve.[12] Cf. Fed.R.Evid. 801(d)(2) (exception to hearsay rule for admission by party-opponent). Chen also filed a supplemental declaration on July 15, 2010. In that declaration, Chen asserts that in May 2008, Lee agreed to go into the nutritional and wellness product business with Chen in Taiwan. Chen then formed Jin Fang in Taiwan. Chen registered himself, his wife, Lee, and his wife as Jin Fang shareholders. Chen asserts that since he listed Lee and his wife as shareholders in “the government filing, [he] had to show that they had invested money in the company.” [Chen Supp. Decl. ¶ 3]. In passing, the Court notes that Chen's statement raises the inference that when Annie Wu told Chen in June 2008 that she had given him and his wife BHTC shares, Chen knew that a document was filed with the government listing them as shareholders and showing that they had invested money in BHTC. Chen, however, denied any such knowledge in his discovery responses and testimony, and he failed to produce information and documents responsive to requests seeking that information. Chen says that although the Jin Fang bank records indicate that Chen, Lee, and their wives each deposited NT $1,250,000 into the Jin Fang account, “the money did not come from them ... All of the money deposited into Jin Fang's bank account came from me.” [Chen Supp. Decl. ¶ 3]. Chen says that in June 2008, Lee changed his mind about participating in Jin Fang. “As a result, Jin Fang ceased doing business and was dissolved in April 2009,” some ten months later. Chen states that “[t]he NT $4,500,000 that Annie Wu had borrowed from me for investment in BHTC in June 2008 came from the NT $5,000,000 that was deposited in Jin Fang's account by [Chen].” [Chen Supp. Decl. ¶ 4]. That statement deviates from the testimony of Annie Wu, who said that she originally asked Chen to borrow NT $4,000,000 to buy the 400,000 shares on offer from BHTC at NT $10 per share, and actually withdrew NT $4,050,000 from Jin Fang's account, of which $4,000,000 was used for the share purchase. [Annie Wu Decl. ¶¶ 11–12]. *22 Chen further states that some documents he produced on July 1, 2010 show research he had done on ingredients that would be used in BHTC products, and that others reflect communications he had with Lee about product formulation. Chen also says that he did not produce documents showing the identity of BHTC's wholesalers because there are no wholesalers in the multi-level marketing business. Chen says that he produced BHTC's distributors' list. [Chen Supp. Decl. ¶ 6]. The evidence demonstrates that Chen repeatedly lied under penalty of perjury and under oath about what he knew and when he knew it. He also lied about whether responsive documents existed or were within his control. Chen's false and misleading testimony includes, but is not limited to, his testimony that: (1) he and his family members were not, and never had been, shareholders, owners, officers, or directors of BHTC; (2) BHTC issued shares to him and his wife without his knowledge; (3) he had no control over, or involvement in, the decision made by Annie Wu or BHTC to make him and his wife shareholders; (4) he had no knowledge of the existence of, or reason for, BHTC shareholder rosters identifying him and his wife as shareholders; (5) neither Chen nor his family members made payments to BHTC for an ownership interest; (6) neither he nor his wife ever wired funds to BHTC; (7) he did not hold an undisclosed ownership interest in BHTC; and (8) information and documents responsive to plaintiffs' legitimate discovery requests, including documents reflecting or relating to payments by defendants to and from BHTC, the development and formulation of BHTC's products, and BHTC's shareholders, directors, officers, creditors either did not exist or were not in his possession, custody, or control. Chen's attempts to explain away inconsistencies in the evidence or excuse his lapses are not credible and suggest that Chen did not testify truthfully about other matters, such as whether or not he was a founder or officer of BHTC, the reason for the transfer to C. Chang of the BHTC shares belonging to Chen and his wife, whether Chen used his relatives' ownership to conceal his beneficial interest in BHTC, the reasons the names of Lee and his wife appear on the Jin Fang bank records as depositors of funds that were transferred to BHTC, and Chen's knowledge of the facts surrounding transfers from bank accounts he owned or controlled to Annie Wu and BHTC. In addition to knowingly making false statements under oath or penalty of perjury, the evidence shows that Chen repeatedly and willfully disregarded his discovery obligations and disobeyed court orders to provide or permit discovery. The Court made prior written findings to this effect in its January 2010 discovery order and its May 2010 order for additional discovery and for sanctions. In the January 2010 order, the Court found that plaintiff unjustifiably refused to answer interrogatories and produce responsive documents within his own possession, custody, and control. The Court noted circumstantial evidence suggesting that Chen “might have more control over BHTC that he admits,” but held that plaintiffs' showing was insufficient to overcome what were later shown to be Chen's knowingly false statements about his relationship with BHTC. [Wilks Decl. II, Ex. G]. *23 In February 2010, Chen filed supplemental responses to plaintiffs' requests for production but produced no additional documents. Chen stated that he had made “a written and oral inquiry to BHTC” for responsive documents, “but BHTC stated that no documents would be provided.” [See Wilks Decl. II, Ex. H]. Chen also stated in his February 2010 supplemental discovery responses that he once had possession, custody, and control of certain responsive documents “as an employee of BHTC,” but since his “resignation from his employment at BHTC on March 31, 2009, [he] no longer had possession, custody, or control over any documents that would be responsive to this request.” In the May 2010 order, the Court found that Chen's testimony with respect to his possession, custody, and control of responsive documents was “inaccurate, and perhaps even perjurious” and must be set aside as untrustworthy, and that the totality of the evidence showed that, contrary to his previous discovery responses and testimony, Chen had at all relevant times the requisite control to produce responsive documents in BHTC's possession, custody, or control. Chen was ordered to produce, within eleven days, all unprivileged documents responsive to enumerated requests for production, including those in BHTC's possession, custody, or control, along with the complete shareholder records of BHTC from January 1, 2007 onward. [Order filed May 25, 2010]. Chen timely served further supplemental discovery responses and production in response to the May 25, 2010 order on June 7, 2010. [Wilks Decl. I, Ex. F]. Chen responded that he would “produce all documents responsive to this request that he has received from BHTC” with respect to requests seeking, among other things, documents constituting, reflecting, or relating to: versions of BHTC's website predating the filing of this action (request for production 41); the research and/or development of products sold by BHTC, all of which Chen testified he independently developed (request for production 91); the identity of any persons who performed research and/or development work for BHTC (request for production 92); products, (other than plaintiffs' products), of a multilevel marketing or network marketing company that any defendant has marketed, distributed and/or offered for sale (request for production 113); the identity of BHTC distributors and/or salespeople (request for production 117); corporate governance records of BHTC (request for production 166); past and/or present owners of BHTC (request for production 167); past and present officers and directors of BHTC (request for production 171); and BHTC's financial statements (request for production 189). In response to request for production 168 seeking documents reflecting or relating to BHTC's past and present creditors or debt-holders, Chen said that he had inquired of BHTC, and that “[b]ased on BHTC's response, [Chen] was unable to comply with this request as responsive documents do not exist and never have existed.” [Wilks Decl. I, Ex. F at 195]. *24 Chen's June 7, 2010 supplemental discovery responses do not cure or adequately explain the defects in his prior discovery responses and also raise further questions. Chen produced responsive documents that he says he received from BHTC; however, he offers no credible explanation or evidence why he could not have obtained those documents sooner. A more credible explanation for Chen's untimely production is his testimony that he did not even make a written request for those documents until he emailed C. Chang on February 2, 2010, after the Court granted in part plaintiffs' motion to compel, and that he consistently endorsed C. Chang's refusal to produce documents. [Hsueh Decl., Ex. B]. In his supporting declaration, Hsueh says that after the Court issued its second discovery order in May 2010, his office translated the relevant requests, sent them to C. Chang, and explained in Chinese why Chen needed those documents. Chen's February 2010 email to C. Chang requesting the documents was written in English, and C. Chang's reply was written in English. [Hsueh Decl., Ex. B]. If a Chinese translation and explanation was all that was needed to secure BHTC's cooperation, Chen could and should have obtained both at the earliest possible moment instead of waiting until long after those documents should have been produced. Moreover, good reason exists to doubt the completeness and reliability of Chen's production of BHTC's documents. First, the actual number of documents in Chen's supplemental production—about 200 pages—is surprisingly small, considering evidence that BHTC was established in November 2007, has had at least 280 distributors, rented office space from Chen, and continued to do business in Taiwan as of May 2010 selling, through 15 to 20 “wholesalers,” at least 10 nutritional and personal care products. [See Wilks Decl. I ¶ 10 & Ex. E at 414–418, 429, 442, 449; Tsai Decl. ¶ 28]. Second, over half of those documents consisted of documents which Chen knew that plaintiffs already had obtained from other sources, including documents duplicative of some of BHTC's Taipei government filings and documents currently available from BHTC's website. [Wilks Decl. I, ¶ 10]. Third, missing from Chen's and BHTC's production were categories of responsive documents that one would fully expect to be maintained in the ordinary course of BHTC's business and within its possession, custody, or control, such as internal accounting books and records (including records of BHTC's rental of an office from Chen and BHTC's payment to Chen of rent he said he collected); records reflecting the identity of BHTC's past or present distributors beyond the single list of distributors Chen produced[13]; and documents unambiguously documenting the research and development of BHTC's products.[14] [See Wilks Decl. I ¶ 10; Tsai Decl. ¶ 24–28]. Fourth, Annie Wu admitted in her supplemental declaration that BHTC destroyed documents after this action was filed and after plaintiffs filed their motion to compel in September 2009. [Annie Wu Supp. Decl ¶ 4]. She did not identify or describe the documents that were destroyed or the specific circumstances involved. During the hearing on this motion, Chen's counsel represented to the Court that no list or record was kept of the documents that were destroyed or discarded, and that the only person still at BHTC who could answer questions about the destroyed or discarded documents was Annie Wu. Chen's counsel indicated that Annie Wu could confirm whether documents responsive to a particular request or requests still existed, but it would be “impossible” for her to know what documents may have been destroyed or discarded by other BHTC employees. [Transcript of July 16, 2010 hearing at 25–30]. *25 Fifth, Chen has not represented or certified that he produced all responsive documents in his possession, custody, or control, including BHTC documents. For example, Annie Wu said in her declaration that she “thought [she] had produced all of BHTC's documents” responsive to the list prepared by Chen and Hsueh “to the extent that BHTC had such documents,” but then realized her “mistake” in failing earlier to disclose, and provide records of, what she contends were unauthorized transfers from Chen's account to BHTC. [Annie Wu Decl. ¶¶ 17–18]. She gave no further assurance that she in fact produced all responsive documents in BHTC's possession, custody, or control. Hsueh said in his declaration that Chen requested responsive documents from BHTC's chairman, C. Chang, the same person who earlier told Chen he would not produce responsive documents. Chen's counsel said that Chen “made good faith efforts to produce all of the documents responsive to Plaintiffs' requests that were covered by the discovery order,” and that “[t]o the best of my knowledge, all of the responsive documents have been produced.” [Hsueh Decl. ¶ 6]. Those statements lack foundation. That was made more apparent during the hearing on this motion, when Chen's counsel represented that Chen had complied with all discovery orders “based on the documents that we received from BHTC,” and that Annie Wu was the person in charge of reviewing and producing responsive documents at BHTC. [Transcript of July 16, 2010 motion hearing at 25–30, 32–33]. Annie Wu has not represented that all responsive documents in BHTC's possession, custody, or control have been produced. Furthermore, Annie Wu has admitted that she destroyed and discarded BHTC's documents. Sixth, Chen has not complied with his duty to supplement discovery responses sua sponte under Rule 26. During the hearing on this motion, moreover, the Court asked Hsueh, Chen's counsel, whether his client had “gone back and reviewed all of [plaintiffs'] requests that were served on you to see whether Chen should supplement his responses to those regardless of whether or not they were subject to an order,” and whether, “[n]ow that it's been found that [Chen] controls documents in the possession or custody of BHTC, have you gone back and looked to see whether there are additional documents that he now has to produce under his supplementation obligation, under Rule 26?”. Chen's counsel said that neither he nor his client had done so, and that he acknowledged that Chen's supplemental document production was confined to disputed document requests that had been the subject of a court order. [Transcript of July 16, 2010 motion hearing at 51–54]. Discussion Standards applicable to a motion for terminating sanctions Rule 26 Rule 26(b) (1) of the Federal Rules of Civil Procedure authorizes parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” A party who has responded to a discovery request “must supplement or correct” its response “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing,” or “as ordered by the court.” Fed.R.Civ.P. 26(e)(1)(A)-(B). Rule 37 *26 “Federal Rule of Civil Procedure 37 authorizes the district court, in its discretion, to impose a wide range of sanctions when a party fails to comply with the rules of discovery or with court orders enforcing those rules.” Wyle v. R.J. Reynolds Indus., Inc. ., 709 F.2d 585, 589 (9th Cir.1983). Under Rule 37(b), if a party or a party's officer, director, or managing agent fails to obey an order to provide or permit discovery, the court may “issue further just orders,” which “may include” an order: (1) designating facts to be taken as established; (2) prohibiting the disobedient party from supporting designated claims or defenses, or from introducing designated matters in evidence; (3) striking pleadings in whole or in part; or (4) rendering a default judgment against the disobedient party. Fed.R.Civ.P. 37(b)(2)(A)(i)-(vii); see Henry v. Gill Indus., Inc., 983 F.2d 943, 947 (9th Cir.1993). A court determining a Rule 37(b) sanctions motion is empowered to “make inferences and credibility determinations from evidence received. No sound basis exists to distinguish between hearing issues that go to the merits of the case and those that go only to the conduct of the parties.” Wyle, 709 F.2d at 592. “Rule 37 sanctions, including dismissal, may be imposed where the violation is due to willfulness, bad faith, or fault of the party. Disobedient conduct not shown to be outside the litigant's control meets this standard.” In re Phenylpropanolamine (PPA) Products Liab. Litig., 460 F.3d 1217, 1233 (9th Cir.2006) (internal quotation marks, citations, and italics omitted); see In re Exxon Valdez, 102 F.3d 429, 432 (9th Cir.1996) (same). Inherent power A district court also has inherent power to sanction a party or attorney for acting in bad faith, vexatiously, wantonly, or for oppressive reasons. Chambers v. Nasco, Inc., 501 U.S. 32, 45–46 & n. 10, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); Roadway Express, Inc. v. Piper, 447 U.S. 772, 766 (1980); F.J. Hanshaw Enter., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1136–1137 (9th Cir.2001); Fink v. Gomez, 239 F.3d 989, 991 (9th Cir.2001). Bad faith encompasses a “broad range of willful improper conduct,” such as where a litigant “is substantially motivated by vindictiveness, obduracy, or mala fides,” or by reckless misstatements coupled with a factor such as frivolousness, harassment, or another improper purpose. Fink, 239 F.3d at 992, 994. A court may impose sanctions under its inherent power for bad faith displayed either toward an adversary or the court. Chambers, 501 U.S. at 54. A finding of bad faith, or conduct tantamount to bad faith, is required to support the imposition of sanctions under a court's inherent power. Fink, 239 F.3d at 992–994. “[W]hen there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the Rules, the court ordinarily should rely on the Rules rather than its inherent power. But if in the informed discretion of the court, neither the statute nor the Rules are up to the task, the court may safely rely on its inherent power.” Chambers, 501 U.S. at 50 (holding that the district court did not abuse its discretion in imposing sanctions under its inherent power where conduct sanctionable under the federal rules “was intertwined with conduct that only the inherent power could address”). Cases involving sanctions under Rule 37 and the court's inherent power may be used “interchangeably .” Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1412 n. 4 (9th Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1019, 112 L.Ed.2d 1100 (1991). *27 In determining whether to impose a case-dispositive sanction for failure to comply with discovery orders, a district court should consider the following five factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Valley Eng'rs Inc. v. Elec. Eng'g Co., 158 F.3d 1051, 1056–1057 (9th Cir.1998), cert. denied, 526 U.S. 1064, 119 S.Ct. 1455, 143 L.Ed.2d 542 (1999); see, e.g., Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir.2004) (per curiam) (applying this test and affirming an order imposing dismissal as a terminating sanction under Rule 37(b) for repeated violations of discovery orders). The same factors are applied in the same manner to assess the propriety of a case-dispositive sanction under the court's inherent power. See In re PPA Products Liability Litigation,460 F.3d at 1226–1227; Adriana Int'l Corp., 913 F.2d at 1412 & n. 4; United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 603 n. 3 (9th Cir.1988). The five-factor test is a disjunctive balancing test, so not all five factors must support a terminating sanction. See Valley Eng'rs, 158 F.3d at 1057 (noting that the five-factor test “amounts to a way for a district judge to think about what to do, not a series of conditions precedent” to imposing a case-dispositive sanction). Analysis The first of the five factors—the public's interest in the expeditious resolution of litigation—always favors imposing a sanction of dismissal or default. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.2002), cert. denied, 538 U.S. 909, 123 S.Ct. 1481, 155 L.Ed.2d 230 (2003); see In re PPA Products Liab. Litig., 460 F.3d at 1227 (“Orderly and expeditious resolution of disputes is of great importance to the rule of law. By the same token, delay in reaching the merits ... is costly in money, memory, manageability, and confidence in the process.”). This action was filed in November 2008, and discovery commenced in February 2009. Plaintiffs' first motion to compel was filed in September 2009, and the discovery cut-off date was in November 2009. Plaintiffs were forced to file two additional discovery and sanctions motions after the discovery cut-off date. Chen's conduct also caused a continuance of the trial date. Remarkably, Chen's discovery responses were still trickling in after every deadline set for completion of discovery and compliance with discovery orders had passed. Chen's disingenuousness, dishonesty, disregard of discovery obligations, and disobedience of court orders undeniably have frustrated the interest in orderly and expeditious resolution of this litigation. The second factor—the court's need to manage its docket—also favors imposing dismissal or default. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.) (noting that “[i]t is incumbent upon us to preserve the district courts' power to manage their dockets without being subject to the endless vexatious noncompliance of litigants” like the plaintiff in that case), cert. denied, 506 U.S. 915, 113 S.Ct. 321, 121 L.Ed.2d 242 (1992). Chen's noncompliance with his discovery obligations and discovery orders left plaintiffs with little choice but to bring successive, meritorious motions seeking to obtain his compliance and deter further noncompliance. Therefore, Chen's conduct needlessly congested the court's docket, consumed scarce judicial resources, and multiplied the proceedings in this case. See Computer Task Group, Inc., 364 F.3d at 1115 (stating that “[w]here a court order is violated, the first and second factors will favor” a terminating sanction); Payne v. Exxon Corp., 121 F.3d 503, 507 (9th Cir.1997) (same). *28 The third factor—prejudice to the party seeking sanctions—weighs in favor of a terminating sanction. A court weighing sanctions for discovery abuses may consider a party's conduct as a whole throughout the discovery process. Adriana Int'l Corp., 913 F.2d at 1412. A party suffers prejudice if its opponent's actions “impair [its] ability to go to trial or threaten to interfere with the rightful decision of the case.” Adriana Int'l Corp., 913 F.2d at 1412 (holding that the plaintiff's repeated failure to appear at depositions and continuing refusal to comply with court-ordered production of documents interfered with the rightful decision of the case and therefore was prejudicial) (citing S.E.C. v. Seaboard Corp., 666 F.2d 414, 417 (9th Cir.1982)); see In re Exxon Valdez, 102 F.3d at 433 (holding that the plaintiffs' failure to respond to discovery and the time consumed in attempting to secure compliance prejudiced defendants). As detailed in the factual findings, Chen knowingly and repeatedly gave perjurious testimony about his ownership of BHTC shares and his knowledge about the fact and circumstances surrounding acquisition and divestment of those shares. Chen's sworn statements are not credible in other respects, such as his denial that he had knowledge of, or was involved in, transfers of funds from accounts he owned or controlled to and from BHTC. Notwithstanding repeated court orders to do so, Chen failed to produce, or belatedly and incompletely produced, responsive documents, including documents reflecting or relating to BHTC's owners, shareholders, governance, distributors, product research and development, payments, and creditors. Chen breached his duty to supplement his discovery responses. Chen also failed to comply with a discovery order requiring him to provide information relevant to spoliation of evidence. Furthermore, Chen's sister-in-law Annie Wu, the “sole person” entrusted by him to take care of his personal and business affairs in Taiwan, admitted destroying, and failing to preserve, BHTC documents during the pendency of this lawsuit and after a motion to compel was filed. Chen's counsel said there was no way to know what documents were destroyed or to reconstruct them. Chen's noncompliance with the discovery rules and court orders was willful or in bad faith because Chen knowingly made false statements of material fact, and because his failure to comply with discovery rules and discovery orders was not beyond his control. See Wyle, 709 F.2d at 590 (affirming dismissal as a sanction where the plaintiff made knowingly false denials of incriminating facts in response to discovery requests, and the plaintiffs' counsel failed to investigate the existence of the incriminating facts despite being aware of other facts suggesting a high probability of their existence, making their failure to investigate “the equivalent of knowledge of the truth”); Anheuser–Busch, Inc. v. Natural Beverage Distrib., 151 F.R.D. 346, 351–353 (N.D.Cal.1993) (dismissing a counterclaim as a sanction for willful, bad faith violation of discovery rules where the defendant was aware that some of her business records had survived a warehouse fire in legible form; knew of, or was “willfully blind” to, their relevance or potential to a lawsuit against her; falsely testified about her knowledge of those documents, their existence, and their condition; and made no attempt to retrieve or produce them until two months before retrial). A court may conclude that a party has willfully failed to produce all responsive documents even where, as here, the existence of withheld documents is not entirely certain. See Wyle, 709 F.2d at 590–591 & n. 4. *29 Plaintiffs have shown that Chen's discovery abuses impaired their ability to go to trial and threaten rightful decision of the case. “Standing alone, failure to produce documents as ordered is considered sufficient prejudice to justify” a terminating sanction. See Anheuser–Busch, Inc., 151 F.R.D. at 347, 353–354 (affirming Rule 37 dismissal sanction where the defendant failed to produce relevant documents until two months before trial) (quoting Adriana Int'l Corp., 913 F.2d at 1412); see also Adriana Int'l Corp., 913 F.2d at 1411–1412 (affirming dismissal sanction under Rule 37 due to the plaintiffs' willful “continuing refusal” to comply fully with orders for the production of documents). Moreover, it is undisputed that Annie Wu, Chen's agent in Taiwan, destroyed and failed to preserve documents in BHTC's possession, custody, or control after this action was filed naming both Chen and BHTC as defendants and after plaintiffs served discovery requests. See Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y.2003) (“Spoliation is ‘the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.’ ”) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999)). In light of this Court's finding that Chen controlled documents in BHTC's possession, custody, or control, this evidence establishes that Chen breached his duty to preserve evidence, which “arises when the party has notice that evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Zubulake, 220 F.R.D. at 216; see United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir.2002) (stating that parties engage in spoliation as a matter of law “if they had ‘some notice that the documents were potentially relevant’ to the litigation before they were destroyed”) (quoting Akiona v. United States, 938 F.2d 158, 161 (9th Cir.1991)); Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F.Supp.2d 456, 479–480 (S.D.N.Y.2010) (holding that a rebuttable presumption arose that responsive, relevant documents were lost or destroyed, and that prejudice resulted, where parties were grossly negligent in “failing to institute a timely written litigation hold,” “failed to collect or preserve any electronic documents” until well after the action was filed, “continued to delete electronic documents after the duty to preserve arose, did not request documents from key players, delegated search efforts without any supervision from management, destroyed backup data potentially containing responsive documents of key players that were not otherwise available, and/or submitted misleading or inaccurate declarations”). Plaintiffs have done more than show a generalized or speculative impairment in their ability to prepare for trial and obtain a rightful decision of this case. Plaintiffs separately settled with Lee without knowing that bank records existed indicating that the funds deposited by Lee and his wife, or at least in their names, subsequently were transferred to BHTC. In addition, plaintiffs paid their expert to provide a damages calculation based on seventeen known distributors recruited by BHTC, only to learn after the close of expert discovery that some 283 Sunrider distributors may have joined BHTC. Chen has not produced internal accounting books and records reflecting BHTC's sales and revenues, which also are highly relevant to plaintiffs' damages calculations. Plaintiffs were forced to take all depositions in this case without the benefit of bank records that Chen did not produce until after expiration of all discovery and production deadlines. [See Plaintiffs' Supp. Brief 3; Transcript of July 16, 2010 hearing at 24 (“Had [plaintiffs] gotten these documents at the outset, there are so many things we would have done differently. Additional depositions, gone to Taiwan—I'm not sure if we ever would have settled with Steve Lee. We would have sought bank records. Certainly, our expert would have taken a completely different approach.”) ]. See Wyle, 709 F.2d at 591 (affirming a dismissal sanction where the plaintiff's willful failure to comply with discovery orders relevant to establish the true extent of its own illegal conduct deprived the defendant of evidence which was not a complete bar to the action but could have been used “to controvert the existence of damages or limit the amount,” and where the plaintiff otherwise would “profit from its own failure to provide discovery”) (citing First Beverages, Inc. v. Royal Crown Cola Co., 612 F.2d 1164, 1174–1175 (9th Cir.), cert. denied, 447 U.S. 924, 100 S.Ct. 3016, 65 L.Ed.2d 1116 (1980)); Anheuser–Busch, Inc., 151 F.R.D. at 347, 353 (affirming Rule 37 dismissal of a counterclaim where the defendant concealed, lied about, and belatedly produced documents that were relevant to an analysis of the defendant's financial condition, an issue in the case). *30 “A partial last-minute tender of documents or information,” such as that made by Chen in his recent supplemental production, does not moot the prejudice to opposing parties or render a terminating sanction unjust. Wyle, 709 F.2d at 591; see N. Am. Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir.1986) (“Belated compliance with discovery orders does not preclude the imposition of sanctions. Last-minute tender of documents does not cure the prejudice to opponents nor does it restore to other litigants on a crowded docket the opportunity to use the courts.”). The fourth factor—the public policy favoring disposition of cases on their merits—weighs against a terminating sanction, as it always does. Pagtalunan, 291 F.3d at 643 (citing Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir.1998)). “Although there is indeed a policy favoring disposition on the merits, it is the responsibility of the [nonmoving] party to move towards that disposition at a reasonable pace, and to refrain from dilatory and evasive tactics.” In re Eisen, 31 F.3d 1447, 1454 (9th Cir.1994) (quoting Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir.1991)). Chen has not fulfilled that responsibility. The fifth factor—the availability of less drastic sanctions—also supports the imposition of a terminating sanction. The availability of less drastic sanctions “involves consideration of three subparts: whether the court explicitly discussed alternative sanctions, whether it tried them, and whether it warned the recalcitrant party about the possibility of dismissal.” Valley Eng'rs Inc., 158 F.3d at 1057 (citing Malone v. U.S. Postal Serv., 833 F.2d 128, 132 (9th Cir.1987)). The Court has used all of those alternatives in an attempt to get Chen to take his discovery obligations seriously, but that measured approach has not deterred Chen from his persistent abuse of the discovery process. There is no reason to believe that plaintiffs have the true facts or that additional lesser sanctions will be effective in ascertaining the truth. The Court satisfied the first of the three criteria listed in Malone by explicitly discussing alternative sanctions during the May 16, 2010 hearing. The Court explained that in its January 2010 order, it had relied on Chen's “honesty and reliability” to discount circumstantial evidence suggesting that he was lying. [Transcript of May10, 2010 hearing at 32]. In light of the additional evidence presented by plaintiffs, the Court granted plaintiffs' request for Chen to appear for an additional day of deposition. The Court also explored the possibility of striking Chen's answer or ordering additional discovery. The Court described Chen as “someone who very well may have lied to me,” adding, “I have very little confidence [that Chen] is going to testify accurately at his deposition based on the record before me. So in that kind of circumstance, maybe a very harsh remedy is what's needed.” [Transcript of May 10, 2010 hearing at 3–4, 32]. The Court asked the parties' counsel for argument about the merits of striking Chen's answer as a sanction as well as the possibility of ordering additional discovery. Chen's counsel argued that striking Chen's answer was too harsh a sanction for an “issue of credibility,” but he conceded that there is authority for a court to exercise its discretion to strike an answer for intentionally withholding records and failing to cooperate in the discovery process despite a court order. [Transcript of May10, 2010 hearing at 32–33]. Plaintiffs argued that lesser sanctions would be ineffective because Chen could not be trusted to testify truthfully or make anything other than a “self-serving” document production. [Transcript of May10, 2010 hearing at 43]. During the July 16, 2010 hearing on this motion, the Court again considered alternative sanctions and heard extensive argument from both sides. [See, e.g ., Transcript of July 16, 2010 hearing at 34–91]. *31 The Court satisfied the second and third Malone criteria by imposing the lesser sanction of attorneys' fees in its May 2010 order and by explicitly warning Chen that failure to comply with that order could result in further sanctions, including judgment by default. [Wilks Decl. II, Ex. I at 171]. See Adriana Int'l Corp., 913 F.2d at 1412–1413 (holding that the district court satisfied the consideration of alternatives requirement by imposing monetary and other sanctions prior to dismissal). The Court assumed and expected that the imposition of monetary sanctions, coupled with a discovery order and the threat of terminating sanctions, would provide Chen with the motivation to fully comply with the Court's orders, produce all responsive documents, and testify truthfully under oath, but that has not happened. Instead, Chen's deception and discovery abuse has continued. Chen's additional deposition testimony revealed further inconsistencies, gaps, and discrepancies in his version of the facts. Even when considering his most recent tardy supplemental production, there is ample reason to conclude that Chen did not make a full and complete production of documents in BHTC's possession, custody, or control, if for no other reason than it now is known that BHTC destroyed or discarded many of its documents. Chen failed to satisfy his obligation to supplement his discovery responses even after the Court ruled that he controlled BHTC documents. The explanations and excuses offered by Chen and his counsel for noncompliance are illegitimate, incredible, or both, such as Chen's purported failure to review his own bank records to determine whether they are responsive to plaintiffs' document requests and his testimony that he did not involve himself in managing his personal or business financial affairs in Taiwan. As late as the hearing on this motion, Chen's counsel represented to the Court that Chen did not and “doesn't know” he had been made a shareholder of BHTC, even though Chen already had belatedly admitted under oath that he had known BHTC issued shares to him and his wife in June 2008. The Court's exploration of the possibility of imposing terminating sanctions during two motion hearings, its statements on the record, and the explicit warning given to Chen in the May 2010 order were sufficient to alert Chen that he “was in serious jeopardy of” of entry of a default judgment for discovery violations. Valley Eng'rs, 158 F.3d at 1057–1058 (holding that the judge's on-the-record statements, explicit warnings, and imposition of monetary sanctions met the consideration of alternatives requirement); In re Exxon Valdez, 102 F.3d at 433 (affirming dismissal under Rule 37(b)(2) where the court warned the disobedient party that continued noncompliance would result in dismissal and first imposed costs as a lesser sanction). Terminating sanctions are “appropriate where a ‘pattern of deception and discovery abuse ma[ke] it impossible’ for the district court to conduct a trial ‘with any reasonable assurance that the truth would be available.’ ” Valley Eng'rs, 158 F.3d at 1057–1058 (quoting Anheuser–Busch, Inc., 69 F.3d at 352). Plaintiffs have been forced to repeatedly litigate issues relating to Chen's discovery misconduct and noncompliance with orders for almost a year. Chen, meanwhile, has exhibited disregard for the integrity of the judicial process. His lack of truthfulness and manipulation of discovery raises “a reasonable inference that if there was other discoverable material harmful to its case that its adversaries did not know about, it would be hidden forever. Where a party so damages the integrity of the discovery process that there can never be assurance of proceeding on the true facts, a case dispositive sanction may be appropriate.” Valley Eng'rs, 158 F.3d at 1058;see Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1097 (9th Cir.2007) (stating that the need for “truth” is the “most critical factor to be considered” in weighing case-dispositive sanctions); see generally Computer Task Group, Inc., 364 F.3d at 1116–1117 (noting that where there is “continued willful disobedience, the magistrate judge could reasonably conclude that additional lesser sanctions would be pointless,” and that the disobedient party “had sufficient notice that continued refusal to cooperate would lead to terminating sanctions”); Pension Comm. of Univ. of Montreal Pension Plan, 685 F.Supp. at 465 (stating that the policy underlying the courts' inherent power to impose sanctions for conduct “which abuses the judicial process” is “the need to preserve the integrity of the judicial process in order to retain confidence that [it] works to uncover the truth”). *32 Any sanction imposed under Rule 37(b) or the court's inherent power must be “just” and, in order to comport with due process principles, must specifically relate to the particular claim or defense that was at issue in the order to provide discovery. Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxite de Guinee, 456 U.S. 694, 707, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (citing Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530 (1909)). When a party's failure or inability to comply with a pretrial discovery order was caused “by its own conduct [or] by circumstances within its control,” the court may strike the party's answer and render a default judgment as a sanction, consistent with due process, because a “permissible presumption [arises] that the refusal to produce material evidence ‘was but an admission of the want of merit in the asserted defense.’ ” Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197, 210, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958) (ellipsis omitted) (quoting Hammond Packing Co., 212 U.S. at 350–351); Adriana Int'l Corp., 913 F.2d at 1413 n. 6 (citing Hammond Packing Co.). “A proper application of Rule 37(b)(2) will, as a matter of law, support such a presumption.” Ins. Co. of Ireland, Ltd., 456 U.S. at 706 (citing Societe Internationale, 357 U.S. at 209–213). That presumption is applicable in this case, making entry of a default judgment just, as well as consistent with due process principles. Recommendation For the reasons described above, plaintiffs' motion for terminating sanctions should be granted, Chen's answer should be stricken, and a default judgment should be entered against Chen. Footnotes [1] On July 22, 2009, the Clerk entered BHTC's default as a result of its failure to timely file a responsive pleading in this action. [See also Order filed June 22, 2010 at 4]. [2] Except where otherwise noted, citations are to the page number or numbers of the relevant document. [3] This summary is adapted, with minor alterations, from Judge Carter's “Final Order Re Subject Matter Jurisdiction” filed on June 22, 2010. [4] Plaintiffs have settled all of their claims with Lee. [See Plaintiffs' Supplemental Memorandum filed June 14, 2010; Stipulated Judgment for Injunctive Relief etc. filed June 16, 2010]. [5] Plaintiffs also state that the parties have been unable to agree on the amount of attorneys' fees to which plaintiffs are entitled pursuant to a prior order awarding plaintiffs sanctions. [Plaintiffs' Mem. 1–2]. The amount of the attorneys' fee award will be addressed in a separate order. [6] The designation “NT $” means New Taiwan dollars. [7] Chen objects to statements made by Tsai in paragraphs 21 through 27 of her declaration on the grounds that those statements are irrelevant, lack foundation, and are speculative. Chen argues that Tsai is not a witness with personal knowledge regarding the substance of the documents provided, and that she “put her own spin and interpretation on the transactions without any foundation or basis.” [Chen's Objections to Tsai Decl. filed July 12, 2010 at 2–4]. Chen's objections are overruled. Chen's objections must be viewed in the context of his egregious tardiness in producing the documents Tsai reviewed. Those documents were produced only after plaintiffs filed a successful motion to compel, and some of them were produced well after the deadline for compliance set by the Court. Plaintiffs had little time to obtain a translation and declaration respecting those documents and to analyze the document production. Chen does not take issue with Tsai's translation of portions of the documents. To the extent that Tsai's testimony consists not of direct translation but interpretation or commentary regarding their significance or probative value, Chen's contentions have been considered in assessing the weight properly given to Tsai's testimony. [8] Rule 604 states: “An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.” [9] Rule 901(a) states that “[t]he requirement of authentication of identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Rule 901(b) provides a non-exclusive list of examples of authentication that comply with the rule. [10] A different situation was presented by Chen's April 20, 2010 objection to the March 16, 2010 declaration of Victor Chang, which was filed in support of plaintiffs' April 2010 motion for reconsideration. Chen objected that Victor Chang did not properly translate, or attach a certificate of translation to, four one-page Chinese-language documents attached to his declaration as Exhibits A through D. Victor Chang stated in his declaration that he was a fluent speaker of both Mandarin Chinese and English. He explained the source of the documents, which were true and correct copies of documents received from the Taipei municipal government in response to his firm's request for BHTC's corporate records. Victor Chang made what he certified under penalty of perjury to be a “true and accurate translation” of part of Exhibit A, a June 19, 2008 shareholder list showing Chen and Julie Chen as BHTC shareholders. He said that the other three documents contained much of the same information, but with some differences, which he translated. Victor Chang provided a declaration under penalty of perjury attesting to his qualifications and the accuracy of his translation of the documents, all of which were attached in the original Chinese. Chen did not challenge the substantive accuracy of Victor Chang's translation. Chen has since produced to plaintiffs the same documents from BHTC, leaving no doubt as to their authenticity. While Chen disputes the significance of those BHTC shareholder lists, he effectively waived any objection by admitting that the shareholder lists dated from June 19, 2008 through December 1, 2008 identified him, his wife, and Annie Wu as shareholders and that those lists were accurate as far as he knew. [See Wilks Decl. I, Ex. E at 482, 491–493, 593]. [11] The “list” is not otherwise identified or described. [12] For a discussion of the law concerning the duty to preserve evidence, see pages 40–41, infra. [13] In the declaration Tsai submitted in support of plaintiffs' motion, she said that Chen's supplemental production of June 7, 2010 included “one BHTC distributor list” but no other documents reflecting or relating to distributors, and that Chen provided no records about BHTC's “wholesalers.” [Tsai Decl. ¶ 27]. Chen responded by filing a supplemental declaration stating that “distributor” is a term of art in the multi-level marketing business, and that there is no such concept as a “wholesaler” in that business. Chen said that plaintiffs asked only for documents reflecting the identity of BHTC's “distributors or sales people,” and “[w]holesalers are neither distributors nor sales people,” so he produced “the distributors list” he received from BHTC. [Chen Supp. Decl. ¶ 6]. [14] Based on statements made by Tsai in her declaration and Chen in his supplemental declaration, plaintiffs and Chen disagree over the characterization of a relatively small number of BHTC documents Chen contends are responsive to a request for documents reflecting research and development of BHTC's products. Those documents are not before the Court. It is unnecessary to accept either party's characterization of those disputed documents to conclude that the absence of more extensive and unambiguous documentation of the research and development of BHTC's products adds to the questions about the completeness of Chen's document production.