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Case Summary: AccessData; Effects of German Blocking Statute on Discovery Obligations

Posted by rjbiii on January 27, 2010

AccessData Corp. v. ALSTE Techs. GMBH, 2010 U.S. Dist. LEXIS 4566 (D. Utah Jan. 21, 2010).

Background: In May, 2005, AccessData and ALSTE Technologies GmbH (“ALSTE”) entered into a contract allowing ALSTE to resell to their customers. Since executing the agreement, ALSTE has sold “hundreds, if not thousands” of AccessData’s products. AccessData sued ALSTE for breach of contract, alleging that over $79,000 in invoices had not been paid for its FTK toolkit 2.0 software. While ALSTE admits that it hasn’t paid the invoices in question, it asserts that it shouldn’t be made to, as the software is defective. ALSTE also filed a counterclaim for the breach of a technical support agreement requiring AccessData to pay ALSTE $2,000 to $4,000 per month to cover technical support for users of AccessData’s products in Germany who were not also customers of ALSTE.

Procedural History: AccessData made requests to ALSTE for the production of documents containing information on customer complaints and any resulting injury suffered by ALSTE. AccessData also propounded interrogatories asking ALSTE to provide information and document regarding any technical support it provided non-customers under the Technical Support Agreement. ALSTE objected to the interrogatories and production requests, contending they were: 1) overly broad, unduly burdensome, and sought irrelevant information, and 2) the disclosure of information relating to third parties identities would violate German law. Access then filed the motion to compel on which the court rules in this opinion.

Discussion: The court stated that ALSTE assertion that providing personal information about its customers and their employees “would be a huge breach of fundamental privacy laws in Germany,” was not backed up by reference to any specific rule or law. ALSTE failed to cite any provision of the German Data Protection Act (GDPA) or German Constitution to back-up its claim. The court then noted that I, Section 4c of the GDPA, entitled “Derogations,” allows for the transfer of personal information to countries without the same level of data protection if the data subject gives his or her consent, or the transfer is necessary or legally required for the establishment, exercise, or defense of legal claims. The court wrote that ALSTE had not described any difficulties in obtaining consent, or explained why the provisions would not apply to this case.

Even in the event that ALSTE had overcome those challenges, the court stated that it disagreed with ALSTE’s assertion that the court must comply with the Hague Convention’s rules governing disclosure of evidence to courts in foreign countries. Citing Societe Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 522, 544, 107 S. Ct. 2542, 96 L. Ed. 2d 461 (1987), the court noted that the law in the U.S. was: “It is well settled that such [blocking] statutes do not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that statute.”

The Supreme Court referenced the American Law Institute summary of the interplay between blocking statutes and discovery orders generally:

“[W]hen a state has jurisdiction to prescribe and its courts have jurisdiction to adjudicate, adjudication should (subject to generally applicable rules of evidence) take place on the basis of the best information available . . . . [Blocking] statutes that frustrate this goal need not be given the same deference by courts of the United States as substantive rules of law at variance with the law of the United States.”

Ultimately, the court decided on this issue to overrule the objections to the discovery request and required ALSTE to search through their data repositories and produce the requested data.

Posted in 10th Circuit, Blocking Statutes, Case Summary, D. Utah, Discovery Requests, Duty to Disclose, Duty to Preserve, Duty to Produce, Hague Convention, International Issues, Magistrate Judge Paul M. Warner | Leave a Comment »

Case Blurb: Mformation Technologies; Court discusses document dumps and the meaning of ‘maintained in the usual course of business’

Posted by rjbiii on November 29, 2009

Courts have struggled with the interpretation of Fed. R. Civ. P. 34 which allows production as documents are maintained in the usual course of the producing party’s business. In attempting to define the requirements that should be place on a producing party who chooses to produce documents in the manner they are normally maintained, the courts have attempted to balance the burden on the respective parties. Generally, courts have concluded that simply dumping a mass of documents on the requesting party may not satisfy the rule’s requirements, even though the undifferentiated mass of documents are in the same form as maintained by the producing party.

Espy v. Mformation Techs., 2009 U.S. Dist. LEXIS 81832, 23-24 (D. Kan. Sept. 9, 2009)(citations removed).

Posted in 10th Circuit, Case Blurbs, D. Kan., Data Dump, Form of Production, FRCP 34, Magistrate Judge Donald W. Bostwick | Leave a Comment »

Case Summary: MFormation Technologies; Court looks at how data is ‘Ordinarily maintained’

Posted by rjbiii on November 27, 2009

Espy v. Mformation Techs., 2009 U.S. Dist. LEXIS 81832 (D. Kan. Sept. 9, 2009)

Factual Background: Plaintiff (Brian Espy) brought this action to recover commissions for sales made while in the employ of defendant company (Mformation). Plaintiff resigned from the company because of disagreements over the method of calculating those commissions. There was also a dispute regarding the value of the accounts for which the commissions would be paid.

In late 2007 or early 2008, defendant company was positioning itself for sale. As part of that process, the company established a secure website to which it published much confidential financial information about itself. Items published included such things as articles of incorporation, board and stockholder meeting minutes, past financial statements, and future financial forecasts of revenues. Mformation limited access to this website to companies and individuals who obtained a secure password from Mformation. The website collected information as to who entered the website and when, not only as to the company that was making the contact, but more specifically the individuals who accessed the site.

Plaintiff contends that the company would have had to have include information on the value of the Clearwire account (the largest of Plaintiff’s accounts for which he sought commissions), and he sought to obtain names of prospective purchases who may have been privy to this information. During deposition, Mformation CEO Mark Edwards refused to provide this information, claiming that the information was privileged and confidential, and that the request was not made to lead to the discovery of admissible evidence. Defendants did, however, state that “all of the representations made to all the third parties are contained in a CD of the secure website which Defendants finally located and provided to the court for in camera inspection.”

Before the court were multiple motions by plaintiff to compel production, and a motion that sanctions be imposed for failure to produce documents.


Identity of Third Parties & continuation of Edwards’ deposition

Defendants represented to the court that all information provided to prospective third-party purchasers about the value of the company was located on the secure website, and that no further materials existed from follow-up discussions or meetings. Certain emails which were attached as exhibits convinced the court that these representations were false, despite defendants’ continued assertions that of the accuracy of those statements. In light of this, the court required defendants to produce to Plaintiff the CD containing the contents of the secure website and certain hard copy documents that were previously produced to the court for in camera inspection.

Defendants argued that because these materials were confidential and proprietary, they should be allowed to produce a redacted version of the material, or have a special master appointed at Defendants’ expense to govern this particular dispute. The court disagreed, however, saying that while it was understood that these materials were confidential, they were also dated, as none of the information includes current financial information or projections.

The court also granted Plaintiff the right to depose any prospective third party purchaser had any direct communications with Mformation or its representative. The court accepted defendant’s offer to produce its 30(b)(6) witness for a deposition, scheduled earlier but cancelled due to that witness’s illness. Finally, in light of the fact that it appeared that responsive data associated with third party prospective purchasers had not been produced by defendant, the court ordered defendant to go back and review its files and records and produce anything it missed first time around.


Documents presented to board of directors concerning Clearwire contract

The court noted that it appeared that documents associated with the Clearwire contract not necessarily involving representations to third parties. The court stated that such documents presented to it for in camera review, in the form of a presentation made to the board of directors during a meeting of that group. Defendants argue that they produced any relevant documents in this category, but the judge noted that they presumably did not produce this document, due to its presence in the in camera review. The court ordered the defendants to produce any such documents that might have been missed in previous productions.

Financial records of Mformation and receipt of payments from contracts booked by Plaintiff

Plaintiffs requested that all documents related to the financial condition of Mformation between the months of December 2007 through May 2009. Defendant’s objected that this request was overly broad and burdensome, and not calculated to lead to the discovery of admissible evidence. Plaintiffs argued that it was entitled to the information because of Defendant’s position (either explicit or implied) that it cannot pay certain commissions. The court agreed with Defendants that the request was extremely broad and could encompass a substantial volume of records, and concluded that plaintiffs reason were not sufficient to mandate a production of all documents encompassed in the request. The court decided to require all financial information concerning the receipt of payments from all contracts for which Plaintiff is seeking commissions. The rub here is that Defendant claimed that it had already produced these documents. The court seemed to express its concern about being able to identify these documents within the large document collection already produced to plaintiff.

Plaintiff complained that defendant’s documents were produced in electronic format, without bates stamps and not categorized in response to the specific requests or interrogatories and that this caused Plaintiff difficulty in accessing and reviewing these records. Defendants responded to this complaint by representing that the documents were produced in the manner in which they are stored and kept in the usual course of the business.

The court then discussed the interpretation of FRCP 34, which allows production as documents are maintained in the usual course of the producing party’s business. The court noted that in attempting to define the requirements that should be place on a producing party who chooses to produce documents in the manner they are normally maintained, the courts have attempted to balance the burden on the respective parties. Generally, courts have concluded that simply dumping a mass of documents on the requesting party may not satisfy the rule’s requirements, even though the undifferentiated mass of documents are in the same form as maintained by the producing party. The court concluded that Defendants should be required to specifically identify, by index or otherwise, those specific financial records that relate to receipts of payments from all contracts for which Plaintiff is seeking commissions, and to specify, by index or otherwise, any financial records of Mformation, from December 2007 through May 2009, that specifically relate to treatment of those contracts, specifically including the Clearwire contract. The court also ordered Defendants to produce documents associated with a separated, but related, request to produce certain financial records not previously provided, some of which were unavailable at the time of the request.

Plaintiff’s Request for Sanctions
The court then turned its attention to Plaintiff’s two motions for sanctions. First, Plaintiff requested that he be reimbursed for all costs associated with discovery from Clearwire, including costs for service of a subpoena to Clearwire and the costs for any deposition of Clearwire, including travel to Seattle, court reporter fees and attorneys fees at $ 250 per hour. Plaintiff also sought all expenses associated with the continuation of the depositions of [Mformation CEO] Mark Edwards and the Rule 30(b)(6) deposition of Defendant , including travel to Defendant’s location in New Jersey, court reporter costs and attorneys fees.

In its second motion, Plaintiff repeated its earlier requests, Plaintiff also sought an order striking Defendants’ responsive pleadings and entering judgment in Plaintiff’s favor and the costs associated with the filing of pleadings concerning the discovery dispute.

The court reiterated its determination that that Defendant be required to produce Mark Edwards for the continuation of his deposition and to produce Mformation’s Rule 30(b)(6) witness for deposition, were to be taken at Defendants’ cost, and that all travel and court reporter’s expenses for both of these depositions were the responsibility of Defendants. The court also ordered Defendants to pay attorneys’ fee for the time spent in completing the deposition of Mark Edwards, capped at $1,250.

The court, however, did not grant Plaintiff’s its request for attorneys fee for conducting the Rule 30(b)(6) deposition of Mformation, as this deposition was merely delayed due to the witness’s illness. This is especially true when one considers that Defendants have voluntarily offered to bring the 30(b)(6) witness to Kansas City for deposition. The court also ordered Defendants to pay he costs and attorneys fees required to file such motions. The court denied the request for all other expenses, without prejudice for renewal in the future.

Motions for additional sanctions were denied.

Posted in 10th Circuit, Case Summary, D. Kan., Data Dump, Discovery Requests, FRCP 30(b)(6), FRCP 34, Magistrate Judge Donald W. Bostwick, Objections to Discovery Requests, Overly Broad Request, Relevance, Sanctions | Leave a Comment »

Case Blurb: Asher Assocs LLC; Role of Intent in Assessing Sanctions

Posted by rjbiii on July 12, 2009

Common sense suggests that a failure to produce or preserve relevant evidence may involve conduct that falls “along a continuum of fault — ranging from innocence through the degrees of negligence to intentionality.”

In Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997), the Tenth Circuit held that “the bad faith destruction of a document relevant to proof of an issue at trial gives rise to an inference that production of the document would have been unfavorable to the party responsible for its destruction.” In the same decision, the Tenth Circuit further reasoned that no adverse inference should arise where the destruction of a document resulted from mere negligence, because only bad faith would support an “inference of consciousness of a weak case.” FN11.

FN11: “‘Bad faith’ is the antithesis of good faith and has been defined in the cases to be when a thing is done dishonestly and not merely negligently. It is also defined as that which imports a dishonest purpose and implies wrongdoing or some motive of self-interest.” Of course, in cases where an adverse inference instruction is neither requested nor appropriate, the Tenth Circuit has held that a finding of bad faith is not required to impose non-dispositive sanctions, such as excluding evidence.

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *27-28 (D. Colo. May 12, 2009)(internal citations removed).

Posted in 10th Circuit, Adverse Inference, Bad Faith, Case Blurbs, D. Colo., Data Retention Practices, Duty to Preserve, Exclusion of Evidence, Good Faith, Magistrate Judge Craig B. Schafer, Sanctions, Spoliation | Leave a Comment »

Case Blurb: Asher Assocs LLC; Second Letter with an ‘Emphatic Tone’ Likely Triggered Duty to Preserve

Posted by rjbiii on July 12, 2009

Defendant cites my decision in Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 623 (D. Colo. 2007), as support for its assertion that Plaintiff’s correspondence in September 2006 was too vague to trigger a duty to preserve evidence. To the contrary, the facts in Cache La Poudre are completely distinguishable. In that case, plaintiff’s counsel sent the putative defendant successive letters over a nearly two-year period in which she reiterated her client’s desire to explore a negotiated resolution of the parties’ dispute. I concluded that the less-than-adamant tone of counsel’s letters, coupled with the lengthy passage of time, belied the contention that Cache La Poudre’s correspondence had triggered a duty to preserve evidence.

Here, the facts compel a different conclusion. Plaintiff’s letter of September 8, 2006, came quickly on the heels of the Warranty Claim letter sent on September 1, 2008. While the earlier letter had not specifically threatened litigation, the September 8 correspondence adopted a decidedly different and emphatic tone. Plaintiff’s outside counsel characterized the earlier letter as a “failed” attempt to resolve the dispute “without litigation.” Where Plaintiff’s September 1st letter referred to “expenditures” incurred by [Plaintiffs] in connection with [certain] Contracts, outside counsel now indicated that his client had been “significantly damaged,” provided [Defendants] with an “interim damage calculation,” and claimed that “damages continue to accrue.” The September 8th letter demanded an “immediate payment” and imposed a five-day deadline for making that payment. Outside counsel went so far as to identify the specific claims for relief that [Plaintiffs] would assert if it initiated “such legal or other action to enforce its rights.” Given the tenor of the September 8th letter, [Defendants] should have understood that future litigation was reasonably foreseeable and substantially “more than a possibility.”

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *24-25 (D. Colo. May 12, 2009)(internal citations removed)(emphases added).

Posted in 10th Circuit, Case Blurbs, D. Colo., Data Retention Practices, Demand Letter, Duty to Preserve, Magistrate Judge Craig B. Schafer | Leave a Comment »

Case Blurb: Asher Assocs; Court Expounds upon Duty to Preserve

Posted by rjbiii on July 12, 2009

In most cases, the duty to preserve evidence is triggered by the filing of a lawsuit. However, the obligation to preserve evidence may arise even earlier if a party has notice that future litigation is likely.

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *23 (D. Colo. May 12, 2009).

Posted in 10th Circuit, Case Blurbs, D. Colo., Duty to Preserve, Magistrate Judge Craig B. Schafer | Leave a Comment »

Case Blurb: Asher Assocs LLC; Exercise of the Court’s ‘Inherent Powers’ to Sanction Party for Spoliation (10th Cir)

Posted by rjbiii on July 12, 2009

Plaintiffs correctly note that the court has inherent power to impose sanctions for the destruction or loss of evidence. []A spoliation sanction is proper where (1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.[]

In exercising its discretion to fashion an appropriate sanction, the court must consider the culpability of the responsible party and whether the evidence was relevant to prove an issue at trial.

First, the court must determine whether the missing [evidence] would be relevant to an issue at trial. If that question is answered in the negative, the court’s analysis stops there. If the missing evidence would be relevant, the court must then decide whether [Producing Party] was under an obligation to preserve the [evidence]. Finally, if such a duty existed, the court must consider what sanction, if any, is appropriate given the non-moving party’s degree of culpability, the degree of any prejudice to the moving party, and the purposes to be served by exercising the court’s power to sanction.

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *16-18 (D. Colo. May 12, 2009)(internal citations removed).

Posted in 10th Circuit, Case Blurbs, D. Colo., Data Retention Practices, Duty to Preserve, Inherent Power of Fed. Courts, Magistrate Judge Craig B. Schafer, Sanctions, Spoliation | Leave a Comment »

Case Blurb: Asher Assocs LLC; A Definition of Spoliation

Posted by rjbiii on July 12, 2009

“Spoliation” has been defined as “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.”

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *16 (D. Colo. May 12, 2009)

Posted in 10th Circuit, Case Blurbs, D. Colo., Magistrate Judge Craig B. Schafer, Spoliation | Leave a Comment »

Case Blurb: Asher Assocs LLC; Reason for Existence of Duty to Preserve

Posted by rjbiii on July 12, 2009

To ensure that the discovery permitted by Rule 26(b)(1) does not become a futile exercise, putative litigants have a duty to preserve documents or materials that may be relevant to potential future litigation.

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *15-16 (D. Colo. May 12, 2009)(citing Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003)).

Posted in 10th Circuit, Case Blurbs, D. Colo., Duty to Preserve, FRCP 26(b), Magistrate Judge Craig B. Schafer | Leave a Comment »

Case Blurb: Asher Assocs LLC, Purpose of Discovery Procedures

Posted by rjbiii on July 12, 2009

Discovery procedures set forth in the Federal Rules of Civil Procedure seek to further the interests of justice by minimizing surprise at trial and ensuring wide-ranging discovery of information. To that end, Rule 26(b) permits discovery “regarding any matter . . . that is relevant to the claim or defense of any party” or discovery of any information that “appears reasonably calculated to lead to the discovery of admissible evidence.”

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *15 (D. Colo. May 12, 2009)(internal citations removed).

Posted in 10th Circuit, Case Blurbs, D. Colo., Discovery, FRCP 26(b), Magistrate Judge Craig B. Schafer | Leave a Comment »