Cameron M. Hancock (#5389)
chancock@kmclaw.com
R. Shawn Gunnarson (#7060)
sgunnarson@kmclaw.com
James T. Burton (#11875)
jburton@kmclaw.com
KIRTON McCONKIE
50 E. South Temple
P.O. Box 45120
Salt Lake City, Utah 84145-0120
Telephone: (801) 328-3600
Facsimile: (801) 321-4893
Attorneys for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
CVENT, INC., a Delaware corporation,
Plaintiff,
v.
RAINFOCUS, INC., a Delaware corporation;
JARED ERB, an individual; SHAWN
JENKINS, an individual; KAKRA ASSASIE,
an individual; TRAVIS CUSHING, an
individual; BRANDON RICH, an individual;
BRANDON BAILEY, an individual; SIRISH
THAPA, an individual; RYAN THOMPSON,
an individual; WAYNE WOODFIELD, an
individual; DOUG BAIRD, an individual;
BRIAN PULHAM, an individual; MIKE
BUSHMAN, an individual; ROBBIE
DODENBIER, an individual; TRICIA
WILLIAMSON, an individual; LEWIS
WALTHER, an individual; MATHEW
SPARKS, an individual; and ANITA
STEWART, an individual,
Defendants.
DEFENDANTS’ EXPEDITED SHORT
FORM DISCOVERY MOTION TO
COMPEL A COMPLETE RESPONSE
TO INTERROGATORY NO. 14
Case No. 2:17-cv-00230-RJS-DBP
Judge Robert J. Shelby
Magistrate Judge Dustin B. Pead
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Pursuant to DUCivR 37-1, Defendants RainFocus, Inc. et al. (“RainFocus”) move the
Court to compel Plaintiff Cvent, Inc. (“Cvent”) to provide a complete response to Interrogatory
No. 14.
RainFocus served its Six Set of Written Discovery on Cvent on October 23, 2018.1 These
Requests included Interrogatory No. 14, which required Cvent to “[i]dentify and define in detail
each and every one of [its] alleged trade secret(s)….”2 The information requested by
Interrogatory No. 14 is directly relevant to RainFocus’ defenses against Cvent’s trade secret
misappropriation claims. Indeed, “[t]he threshold issue in every case is whether ... there is a trade
secret to be misappropriate[d].”3 Without an adequate and timely identification of the asserted
trade secrets, it is impossible to conduct discovery to probe the veracity of the misappropriation
claim.4
However, when Cvent finally responded to Interrogatory No. 14 on December 14, 2018,
it provided nearly 18 pages of generic and unhelpful narrative.5 While voluminous, Cvent’s
response failed to provide “the precision and particularity necessary to separate it from the
general skill and knowledge possessed by [the Defendants and those in the industry].” 6
1 See Defendants’ Sixth Set of Written Discovery Requests, Inc., dated Oct. 23, 2018, attached
hereto as “Exhibit A”.
2 Ex. A, at 19.
3 Utah Med. Prod., Inc. v. Clinical Innovations Assocs., Inc., 79 F. Supp. 2d 1290, 1311 (D. Utah
1999), aff’d, 251 F.3d 171 (Fed. Cir. 2000).
4 See, e.g., ComputerEconomics, Inc. v. Gartner Group, Inc., 50 F.Supp. 2d 980, 985 (S.D. Cal.
1999) (finding a well-defined trade secret: (1) “promotes the well-investigated claims and
dissuades the filing or meritless trade secret complaints, (2) prevents the plaintiff from using the
discovery process as a means to obtain the defendant’s trade secrets,” (3) “assists the court in
framing the appropriate scope of discovery and in detem1ining whether plaintiffs discovery
requests fall within that scope.,” (4) enables the defendants to form complete and well-reasoned
defenses, ensuring that they need not wait until the eve of trial to effectively defend against a
charge of trade secret misappropriation”).
5 See Cvent’s Response to Defendants’ Sixth Set of Written Discovery Requests, dated
December 14, 2018, attached hereto as “Exhibit B,” at 27-33 & Exhibit A thereto.
6 Utah Med. Prod., 79 F. Supp. 2d 1290, at 1313.
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On January 9, 2019, RainFocus brought these deficiencies to Cvent’s attention and Cvent
agreed to supplement its response.7 However, Cvent’s supplemental response still broadly
identifies “[a]ll versions of Cvent’s Conference event management software applications”
including: “architecture,” “source code,” “database schema,” “structure, organization and logical
arrangement,” “bug fixes,” “negative know-how” etc. as its trade secret(s).8 Critically, Cvent has
still failed to provide the total number of trade secrets that it is asserting as well as an
identification and description that “delineat[es] between the general knowledge and experience
of [its] employee[s] and [each] trade secret[] of [Cvent].” 9 Cvent’s current approach of claiming
an indefinite number of amorphously defined trade secrets is inappropriate and its response must
be supplemented to correct this deficiency.
Cvent cites to this Court’s decision in StorageCraft10 to justify the shortcoming in its
identification.11 In particular, it claims a “bit-by-bit” identification is unnecessary because
broadly identifying the source code for its Conference event management software platform puts
Defendants on notice that all of Cvent’s source code is a protectable trade secret.12 This
argument misses the mark. Unlike StorageCraft where Symantec had “clearly identified three
discrete documents as compilations and unequivocally stated that the compilations are the trade
secrets it alleges,”13 Cvent broadly claims the entirety of it source code – including any unknown
7 See Letter from James T. Burton, dated Jan. 9, 2019, attached hereto as “Exhibit C”.
8 See Cvent’s Supplemental Response to Defendants’ Sixth Set of Written Discovery Requests
(Rog. No. 14), dated Feb. 2, 2019, attached hereto as “Exhibit D”.
9 See Microbiological Research Corp. v. Muna, 625 P.2d 690, 697 (Utah 1981).
10 StorageCraft Technology Corp. v. Symantec Corp., No. 2:07 cv 856 CW, 2009 WL 361282
(D. Utah Feb. 11, 2009)
11 Id. at *1.
12 Letter from Vaughn G. Pedersen, dated Fed. 1, 2019, attached hereto as “Exhibit E”.
13 StorageCraft, No. 2:07-CV-856 CW, 2009 WL 112434, at *2. In StorageCraft, Symantec had
defined its trade secret as “[t]he information concerning product requirements and customer
requirements (e.g., “Top Issues” lists) for V2i Protector products and service packs, including
V2i Protector 1.0 (released August 21, 2002), V2i Protector 2.0 Server Edition (released June 10,
2003), V2i Protector 2.0 Desktop Edition (released June 10, 2003), V2i Protector 2.0 Small
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number of files and code lines.
Despite failing to identify its trade secret with any specificity, Cvent has been provided
with 200 hours of source code review and is now seeking an additional 250 hours.14 Rain Focus
is concerned that the request for hundreds of hours of code review stems from Cvent’s failure to
specifically identify and define its asserted trade secrets. The law is clear –“[t]he burden is upon
the plaintiff to establish the existence of a trade secret and plaintiff must substantiate more than
vague and unsupported allegations….”15 Accordingly, the Court should compel Cvent to identify
and describe is asserted trade secrets with the requisite degree of specificity.
DATED this 14th day of March, 2019.
Respectfully submitted,
KIRTON | McCONKIE
By: /s/ James T. Burton
Cameron M. Hancock
R. Shawn Gunnarson
James T. Burton
Counsel for Defendants
Business Edition (released October 28, 2003), and V2i Service Pack (SP)2.” See StorageCraft
Tech. Corp. v. Symantec Corp., No. 2:07-CV-856 CW, Dkt. No. 43, at 6.
14 See Defendants’ concurrently filed Expedited Short Form Discovery Motion for a Protective
Order Re: Source Code Access, Dkt. No. 201.
15 Utah Med.Prods., Inc. 79 F.Supp. 2d 1290 at 1312-13.
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MEET AND CONFER CERTIFICATION
The parties met and conferred concerning the relief sought herein on March 14, 2019.
The participants in the meet and confer included, among others, James T. Burton on behalf of
RainFocus and Vaughn G. Pedersen behalf of Cvent.
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CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of March, 2019, I caused a copy of the foregoing to
be filed using the Court’s CM/ECF electronic filing system, which provides service to all
counsel of record.
/s/ James T. Burton
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