Cvent Inc v. RainFocus et al

MOTION to Expedite Short Form Discovery Motion and Memorandum in Support , MOTION for Short Form Discovery re: Compel a Complete Response to Interrogatory No. 14

D. UtahMarch 14, 2019

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 Case 2:17-cv-00230-RJS-DBP Document 202 Filed 03/14/19 Page 1 of 6 1 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. Case 2:17-cv-00230-RJS-DBP Document 202 Filed 03/14/19 Page 2 of 6 2 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 Case 2:17-cv-00230-RJS-DBP Document 202 Filed 03/14/19 Page 3 of 6 3 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. Case 2:17-cv-00230-RJS-DBP Document 202 Filed 03/14/19 Page 4 of 6 4 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. Case 2:17-cv-00230-RJS-DBP Document 202 Filed 03/14/19 Page 5 of 6 5 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 Case 2:17-cv-00230-RJS-DBP Document 202 Filed 03/14/19 Page 6 of 6