Universal Engraving, Inc. v. Metal Magic, Inc.
Universal Engraving, Inc. v. Metal Magic, Inc.
2010 WL 11425439 (D. Ariz. 2010)
January 14, 2010
Snow, G. Murray, United States District Judge
Summary
The Court granted the Motion to Compel in part, ordering Defendants to provide full and complete responses to Plaintiff's First Production of Documents and to reopen the depositions of certain individuals to question them pertaining to documents recovered from the computer storage devices of Metal Magic or its agents or employees. The Court also granted the two Motions to Seal Exhibits to protect the confidential nature of the ESI.
Universal Engraving, Inc., a Kansas Corporation,
v.
Metal Magic, Inc., an Arizona Corporation, and; Charles R. Brown, an individual, Defendants
v.
Metal Magic, Inc., an Arizona Corporation, and; Charles R. Brown, an individual, Defendants
No. 08-1944-PHX-GMS
United States District Court, D. Arizona
Signed January 14, 2010
Snow, G. Murray, United States District Judge
ORDER
*1 Pending before the Court are five motions of the parties. They include: (1) Plaintiff's Application to Modify the Court's Stipulated Protective Order (Dkt.# 118); (2) Motion to Strike Plaintiff's Untimely Expert Witness Disclosures By Charles R. Brown, Metal Magic, Inc. (Dkt.# 135); (3) Motion to Compel Discovery by Universal Engraving Inc. (Dkt.# 145); (4) Motion To Seal Exhibits to Motion to Compel Under Seal by Universal Engraving, Inc. (Dkt.# 146); and (5) Motion to Seal Document re: Certain Exhibits to Plaintiff's Reply (Dkt. # 158).
The Motions result from the following background.
In this Court's Case Management Order it set a discovery cut-off date of December 4, 2009 and a deadline of June 19, 2009 for the Plaintiffs to disclose their testifying trial experts' opinions. That Order noted that testifying expert reports disclosed under Rule 26 (a)(2)(B) must set forth “the testimony the witness is expected to present during direct examination, together with the reasons therefore. Full and complete disclosures of such testimony are required on the dates set forth above; absent truly extraordinary circumstances, parties will not be permitted to supplement their expert reports after these dates.” (Dkt. # 19 at ¶ 5(g)). At the request of the parties, the Court extended the date for Plaintiff's to provide complete trial expert disclosures until July 17. (See Dkt. # 30). The Court received no additional requests to extend this expert disclosure deadline.
At the end of August, a month and a half after the deadline had expired, Plaintiff's requested additional time to permit supplementation of their trial expert disclosure to include an analysis of the documents and other materials contained on computer and electronic components belonging to Metal Magic. The Court treated the motion as one to modify the Court's Case Management Order and, after briefing, the Court denied this request on October 1, 2009. (Dkt. # 77). The Order denying that request, however, did not indicate that Plaintiff could not conduct discovery concerning materials that might be contained on the computers or other electronic components of the Defendants. The Order in fact noted “it is not clear to the Court that expert testimony is the only way that Plaintiff can establish the Defendants use of Plaintiff's trade secrets if such use exists. As Plaintiff has pointed out, discovery in this matter is still open.”
Nevertheless, Defendants, citing the Order as justification, declined to respond to outstanding discovery from the Plaintiff including discovery related to the contents of their electronic storage devices. This refusal necessitated a motion to compel which, due to the time incurred in the necessary briefing and the failure of Plaintiff to initially seek a telephonic conference, the Court did not resolve until early November. It then entered an Order compelling Metal Magic to respond to various long-outstanding discovery requests including a request by Plaintiff to examine Metal Magic's computer storage devices. (See Dkt. # 108).
*2 Prior to the depositions of Dr. Duarte which was scheduled shortly thereafter, Plaintiff further requested, pursuant to the discovery procedures contained in the Case Management Order, that Defendants participate in another telephonic conference with the Court so that it could seek permission to use various documents in the deposition of Dr. Duarte that had been designated as “attorneys eyes only” by the Defendants. Defense counsel refused to participate in a telephonic conference with the Court. Plaintiff submitted the issue on written pleadings by filing its Motion for Plaintiff's Application to Modify the Court's Stipulated Protective Order on November 13. (Dkt.# 118).
During the time required for the briefing on Plaintiff's Application to Modify, the Defendants filed a Motion to Strike based on two additional developments in the litigation. First, Plaintiff had introduced in their 30(b)(6) deposition of Mr. Charles Brown, a supplemental report by their trial expert witness on computer forensics—Andy Antunez. This supplemental report had been prepared after the deadline for disclosure of expert reports set forth in the Case Management Order. Second, after receiving disclosure of the Metal Magic computer components compelled by the Court, Plaintiff had disclosed the affidavit of Lonnie Dworkin. Mr. Dworkin had been retained by the Plaintiff to ascertain the contents of those components. Mr. Dworkin avers in his affidavit that a number of specified documents were contained on the computer storage devices he analyzed. Plaintiff asserts that these documents were responsive to the Plaintiff's outstanding discovery requests, had not been previously produced by the Defendants, and tend to establish Metal Magic's liability on the complaint. Defendants ask the Court to strike Antunez's supplemental report and Dworkin's affidavit. (See Dkt. # 135).
During this same time, immediately prior to the expiration of discovery, Plaintiff filed a Motion to Compel based on the documents it located on Metal Magic's electronic storage components that it alleges were responsive to its previous discovery requests and had not yet been provided by Metal Magic. Plaintiff further alleged based on deposition testimony of Charles Brown that Defendants had not made an adequate attempt to locate documents in their possession responsive to Plaintiff's requests. Because the briefing on this issue also involved the submission of documents designated by Defendants as confidential, the parties also filed two motions to seal aspects of this briefing. The discovery deadline has now expired:
After a review of the docket, and of all of the motions, responses, replies and attachments thereto, the Court orders that the Motions to Seal, docket numbers 146 and 158 are granted.
With respect to the underlying motions, the Court makes the following rulings for the following reasons.
The Court requires that discovery disputes be brought to the Court telephonically both to expedite discovery and to reduce the expense to all parties. As both parties are by now aware, the Court takes the deadlines and procedures set forth in its Case Management Orders seriously, and expects that all parties will do the same. Thus, in the absence of good cause, Plaintiff was not permitted to supplement the opinions of its expert trial witness after the time required for doing so in the Court's Case Management Order had expired.
In the Order denying the request to supplement, however, the Court indicated that Plaintiff could use other discovery methods to present its case on the merits. Defendants' refusal to provide the Plaintiff with the outstanding discovery based on that Order is, at best, an over-interpretation of the Order. This over-interpretation resulted in delay in obtaining a resolution of the dispute until only a month remained in the discovery period. On ensuing occasions, Defendants declined to participate in telephonic conferences with the Court to resolve discovery disputes. This left Plaintiff with little option but to file motions to modify and to compel, which, of necessity were not resolved until after the discovery period had expired. This Court finds that this decision by Defendants' counsel unreasonably delayed the resolution of some legitimate discovery questions.
*3 Just as the Court is disinclined to award Plaintiff for its lack of diligence in disclosing the opinions of its desired expert, it is disinclined to award the Defendants for behavior that frustrates effective discovery, even if Defendants assert a basis on which they claim their refusal is justified. With these considerations in mind, and with a desire to weigh the balance of these questions in favor of a resolution on the merits where it is possible to do so consistent with the Court's previous rulings, the Court rules on the outstanding motions as follows:
Plaintiff's Application to Modify the Court's Stipulated Protective Order (Dkt.# 118) is granted. The protective order is modified to remove the “Attorney's eyes only” designation as it pertains to the fifty pages of documents previously identified by Plaintiff that purport to be sent to or drafted by Dr. Frederick Duarte. Those documents may be used in a redeposition of Dr. Duarte but otherwise retain their status as confidential and “Attorneys Eyes Only” documents except as they relate to the deposition of Dr. Duarte. The scope of the redeposition of Dr. Duarte will be further set forth in this Order.
Motion to Strike Plaintiff's Untimely Expert Witness Disclosures By Charles R. Brown, Metal Magic, Inc., (Dkt.# 135), is granted in part and denied in part. The Court's Case Management Order and Fed.R.Civ.P. 26(a)(2)(B) set forth the required disclosures for witnesses who will be testifying as experts at trial. Failure to comply with the Court's Order carries with it its own sanction. The expert will not be allowed to testify with respect to matters that are not disclosed in his opinions filed prior to the expiration of the deadline. The Court reaffirms its previous Order to this effect.
Defendants apparently desire this Court to prevent use of untimely disclosed expert reports for other purposes during discovery. Without ruling on the admissibility of such evidence at trial, the Court declines to make such a ruling. Therefore, to the extent that the Motion to Strike seeks to prevent any use of the untimely filed expert reports or opinions of Andy Antunez during discovery in this matter, that motion is denied without prejudice to an objection to its admissibility at trial.
To the extent, however, that the Motion to Strike seeks to prevent Lonnie Dworkin from testifying at trial regarding the documents he identified as coming from Defendants' computer components, the motion is granted. Mr. Dworkin's testimony in that respect would be expert testimony. United States v. Ganier, III, 468 F.3d 920, 925–26 (6th Cir.2006). Before it could be presented at trial it would have to have been timely disclosed. It was not. Therefore, in this respect Defendants' motion is granted, and such testimony will not be permitted at trial.
Nevertheless, a refusal to allow Mr. Dworkin to testify at trial concerning the provenance of the documents does not prevent the Court from considering Mr. Dworkin's affidavit as it pertains to the Court's ruling on Plaintiff's Motion to Compel, and Plaintiff's request that as a sanction the Court designate certain documents as being authenticated for purposes of foundation subject to other objections at trial. To the extent that Defendants' Motion seeks to preclude such consideration by the Court, the Motion is denied.
Plaintiff's Motion to Compel (Dkt.# 145) is granted in part, denied in part without prejudice, and denied in part as follows. Defendants are ordered to provide full and complete responses to Plaintiff's First Production of Documents no later than January 29, 2010. Defendants are further ordered to attest that they have fully responded to such requests. The depositions of Theodore Geisler and Cy Brown are reopened for the limited purpose of questioning the deponents pertaining to the documents that were recovered from the computer storage devices of Metal Magic or its agents or employees by Mr. Dworkin or such documents or other materials that are subsequently provided in response to this Order. The deposition of Dr. Duarte is reopened for the limited purpose of asking him questions related to the above documents, and the fifty (50) documents that were designated by Plaintiff in conjunction with its Application to Modify the Court's Stipulated Protective Order (Dkt.# 118). Plaintiff will also be allowed to depose a representative of Affinity Technology only with respect to the existence, configuration and contents of Metal Magic's electronic back-up tapes and systems. Both parties will bear their own expenses in conjunction with such depositions. Defendants will cooperate in the taking of such depositions which shall be completed by the end of February.
*4 The deadline for case dispositive motions is extended until March 31, 2009. No other discovery will be allowed absent further Order of the Court based on compellingly good reasons. The parties shall not file further discovery motions with the Court absent compliance with the Case Management Order, and defense counsel shall participate in such conferences.
The Court will defer ruling on Plaintiff's request for sanctions, and a determination of what the sanction should be if one is merited, until the remaining authorized discovery has been taken. Therefore,
IT IS HEREBY ORDERED with the further detail specified above as follows:
1. GRANTING Plaintiff's Application to Modify the Court's Stipulated Protective Order (Dkt.# 118).
2. GRANTING IN PART AND DENYING IN PART Motion to Strike Plaintiff's Untimely Expert Witness Disclosures By Charles R. Brown, Metal Magic, Inc. (Dkt.# 135).
3. GRANTING IN PART, DENYING IN PART WITHOUT PREJUDICE, AND DENYING IN PART the Motion to Compel Discovery by Universal Engraving Inc. (Dkt.# 145).
4. GRANTING the Motion To Seal Exhibits to Motion to Compel Under Seal by Universal Engraving, Inc. (Dkt.# 146); and the Motion to Seal Document re: Certain Exhibits to Plaintiff's Reply (Dkt.# 158).
5. The Clerk of the Court is directed to file the lodged Exhibits (Dkt. # # 147, 159) under seal.
6. Defendants shall provide full and complete responses to Plaintiff's First Production of Documents no later than January 29, 2010.
7. Extending the discovery deadline for the limited authorized depositions specified above, and extending the dispositive motions deadline to March 31, 2010.
DATED this 14th day of January, 2010.