CrossFit, Inc.’s Renewed Motion for Terminating Sanctions Against the NSCA

On June 20, 2019, CrossFit, Inc. filed a renewed motion for terminating sanctions against the National Strength and Conditioning Association (NSCA) in the Southern District Court of California.

CrossFit’s renewed motion for terminating sanctions, filed after years of litigation and forensic investigation, puts the NSCA’s systemic corruption on full display — corruption that pervades the highest levels of the association’s academic and organizational leadership:

CrossFit, Inc. (“CrossFit”) filed this lawsuit in May 2014 because the National Strength and Conditioning Association (“NSCA”) published a supposedly “scientific” study containing false and fabricated data about CrossFit’s injury rate that was designed specifically to harm CrossFit’s business and reputation. For the last five years, the NSCA has engaged in nothing short of a marathon of malfeasance: a consistent, intentional, and malicious pattern of discovery abuses designed to cover up the NSCA’s wrongdoing and to prohibit CrossFit and the Court from learning the truth about the NSCA’s fraud. The NSCA’s abuses, and efforts to conceal its abuses, are among the worst of any published case in modern history and include systemic perjury, evidence destruction, and evidence concealment. CrossFit has spent millions of dollars litigating the NSCA’s lies and it is unfair and impossible for CrossFit to try this case in light of the NSCA’s malfeasance. CrossFit is conditioned to keep fighting, but it is tired of running the NSCA’s deceitful marathon; the race is over. The NSCA must be held accountable, and the NSCA’s misconduct requires termination in CrossFit’s favor.

The NSCA was already sanctioned for its discovery abuses, which only resulted in an increase in the NSCA’s misconduct. In May 2017, this Court ordered a neutral forensic evaluation of the NSCA’s servers and other electronic property to determine the scope of the NSCA’s discovery abuses. In response to the Court’s sanctions, the NSCA sought reconsideration, claiming the sanctions were too heavy-handed because the NSCA “unintentionally” failed to produce only 70 documents. The actual facts—finally revealed through the Court’s forensic evaluation—prove that the NSCA failed to produce over 279,000 responsive documents, including thousands directly referencing CrossFit.

The documents the NSCA hid from CrossFit reveal an extensive, coordinated NSCA marketing campaign to publish and promote fabricated research—extending far beyond the Devor Article—that was manufactured through NSCA’s corrupt peer-review processes. Even worse, these documents directly refute many of the NSCA’s arguments to the Court in extensive motion practice over the past five years, including the NSCA’s motion for summary judgment in which the NSCA represented to the Court that it was not a commercial competitor while, at the same time, concealing literally thousands of documents proving that the NSCA considered CrossFit to be its direct and biggest competitor.

The NSCA has committed discovery misconduct of unprecedented proportions. As illustrated below, the Court should now terminate under four independent grounds: Federal Rule of Civil Procedure (“Rule”) 37(e), Rule 37(c), Rule 37(b), and the Court’s inherent power. Lesser sanctions cannot fairly cure the prejudice to CrossFit, deter further NSCA misconduct, or allow a fair trial on the merits. CrossFit respectfully requests the Court (i) strike the NSCA’s Answer; (ii) enter default judgment against the NSCA; (iii) issue evidentiary sanctions against the NSCA by permitting CrossFit to submit unopposed damages evidence, including new and additional expert reports, through briefing in lieu of an evidentiary hearing; and (iv) issue monetary sanctions against the NSCA.

CrossFit, Inc. has compiled all the public documents relating to its renewed motion for terminating sanctions. The compilation may be accessed here. CrossFit will update the compilation with the NSCA’s opposition papers and CrossFit’s reply brief. Check back for updates.