Opinion
Case No: 1:03CV107DAK
November 29, 2003
ORDER GRANTING MOTIONS FOR PROTECTIVE ORDER IN PART AND DENYING MOTION FOR STAY
Defendants Allred and Ryscor have moved for a protective order, with essentially similar requests. Ryscor also moved for a stay of discovery. Plaintiff Frontier has filed its opposition. Allred and Ryscor have made no reply.
Defendant Allred's Motion for a Protective Order Regarding Plaintiffs Expedited Discovery, docket no. 66, filed November 16, 2003.
Special Appearance of Defendant Ryscor to File Motion to Stay Proceedings, or in the alternative, for a Protective Order, docket no. ___, filed November ___, 2003, and Memorandum in Support of Special Appearance of Defendant Ryscor to File Motion to Stay Proceedings, or in the alternative, for a Protective Order, docket no. ___, filed November ___, 003. [As of the entry of this order, these documents dated November 19, 2003, were not filed with the court. A copy of each as received by fax in chambers is lodged concurrent with entry of this order.]
Plaintiffs Memorandum in Opposition to Defendant Allred's Motion for a rotective Order, docket no. 76, filed November 21, 2003.
Replies to the opposition to motions for protective order were required to be filed and served within two (2) days of service of the opposition. See Scheduling Order for Motions and Discovery, docket no. 71, filed November 18, 2003.
These motions arise in connection with expedited discovery granted by the district judge in a November 10th hearing to facilitate a preliminary injunction hearing set in January 2004. When the district judge ordered expedited discovery, entry of a protective order was contemplated along the lines of the Mutual Protective Order requested by Plaintiff Frontier which has been entered by the magistrate judge, Further, additional protections for electronic data were discussed at the hearing.
Docket no 56, filed November 10, 2003.
Docket no. 21, filed October 14, 2003.
Dated November 29, 2003, docket no. ___, filed November ___, 2003.
Frontier was very concerned about a FileMaker database which it asserts is a "multi-million dollar database" which has "everything that has gone into our files, into Frontier's files." Frontier says the database "contains all of [Frontier's] recipes and steps and literature and everything." Frontier stated that it is not looking for work product or privileged material that Ryscor has developed. "[I]f there are no FileMaker database programs on Ryscor's computers, then the issue is completely resolved."
FileMaker is a commercial database program,http://www.filemaker.com/
Transcript of Hearing November 10, 2003, page 27.
Transcript, page 5.
Transcript, page 18.
Transcript, page 25.
Transcript, pages 27-28.
Frontier also wanted to gather information about unfair use of its trade secrets in competitive activities Ryscor and/or Allred may have undertaken, Ryscor and Allred are concerned, in turn, that Frontier may invade their trade secrets. Filtering and protecting this trade secret information is complicated by the contemplated production of electronic data which does not readily allow selection of information.
In the November 10th hearing, Frontier spoke in terms of having a third-party expert examine computers used by Ryscor and Allred. This is part of what Ryscor and Allred want. It should be ordered.
Transcript, page 18 and page 3 5.
Ryscor and Allred also seek that a mediator be appointed. This is unnecessary.
Ryscor and Allred also want to limit the scope of discovery ordered by the district judge. The magistrate judge will not rule contrary to the district judge, particularly where the district judge has already overruled the magistrate judge.
See Order denying Plaintiffs Expedited Motion for Expedited Discovery, docket no, 48, filed November 3, 2003, which was reversed by the district judge in the November 10, 2003, hearing.
Ryscor also seeks to stay discovery. This again would be contrary to a ruling in this case by the district judge.
ORDER
IT IS HEREBY ORDERED that the Motion for Stay is DENIED.
Special Appearance of Defendant Ryscor to File Motion to Stay Proceedings, or in the alternative, for a Protective Order, docket no. ___, filed November ___, 2003. [As of the entry of this order, this document dated November 19, 2003, was not filed with the court. A copy as received by fax in chambers is lodged concurrent with entry of this order.]
IT IS FURTHER ORDERED that the Motions for Protective Orders are GRANTED in part.
Defendant Alfred's Motion for a Protective Order Regarding Plaintiffs Expedited Discovery, docket no. 66, filed November 16, 2003; and Special Appearance of Defendant Ryscor to File Motion to Stay Proceedings, or in the alternative, for a Protective Order, docket no. ___, filed November ___, 2003, [As of the entry of this order, this document dated November 19, 2003, was not filed with the court. A copy as received by fax in chambers is lodged concurrent with entry of this order.]
IT IS FURTHER ORDERED that the following provisions shall govern the inspection and production of electronic data consistent with the prior orders of this court: Designation of Expert Plaintiff may select and pay an expert in recovery, preservation and search of electronic data information who shall subscribe to the Mutual Protective Order and shall conduct inspection as outlined in this order and the prior orders.
Docket no. 21, filed October 14, 2003; Scheduling Order for Motions and Discovery, docket no. 71, filed November 18, 2003; Mutual Protective Order, dated November 29, 2003, docket no. ___, filed November ___, 2003.
Inspection and Recovery. The expert will inspect the computers in question to search the hard drives of the computers. The expert shall recover any files designated by criteria supplied by Plaintiffs counsel within the ordered scope of discovery. The expert may also provide to Plaintiffs counsel available information (a) showing when any recovered "deleted" file was deleted, and (b) about the deletion and contents of any deleted file that cannot be recovered,
Mirror Image. The expert may also create a "mirror image" or "snapshot" of the hard drives for further use subject to further orders of the court. Cf. Gates Rubber Co. v. Bando Chemical Industries, Ltd., 167 F.R.D. 90, 111-113 (D.Colo. 1996) (describing problems that arose when one party's effort to preserve and recover files resulted in overwriting of 7 to 8 percent of hard drive contents). This material shall be retained by the expert and not delivered to Plaintiffs counsel without stipulation of all counsel or further order of this court.
Designation. All information obtained by the expert shall be tentatively designated "Confidential-Outside Counsel's Eyes Only."
FileMaker Databases. The expert shall immediately provide any information regarding FileMaker databases or application files to Plaintiffs and Defendants' counsel.
Other Materials Obtained from Inspection and Recovery. The expert shall as soon as practicable provide to defendant's counsel all materials other than FileMaker databases obtained pursuant to the Inspection and Recovery in a form reasonably convenient, After receiving these records from the expert, defendant's counsel shall then review these materials for attorney-client or work product privilege objections which he shall state in writing in a privilege log within five (5) days after receipt of the materials, and thereafter the expert shall deliver to Plaintiffs counsel all materials to which no objection is made. The materials as to which attorney-client or work product privilege is claimed may be subject of further motion.