AF Holdings LLC v. Doe

Filing 50

ORDER by Magistrate Judge Nandor J. Vadas denying 38 Motion to Compel; denying 46 Discovery Letter Brief (njvlc2, COURT STAFF) (Filed on 2/4/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AF HOLDINGS LLC,
Plaintiff,

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v.

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JOE NAVASCA, et al.,

ORDER DENYING PLAINTIFF’S
EMERGENCY MOTION TO COMPEL
Re: Dkt. No. 38

Defendant.

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United States District Court
Northern District of California

Case No.:3:12-cv-02396-EMC (NJV)

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Plaintiff AF Holdings LLC filed an “emergency motion to compel,” alleging that

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defendant Joe Navasca was destroying evidence of his copyright infringement activities by

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running a computer program, CCleaner, on his computer. See Doc. Nos. 38, 42. Discovery

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matters in this action having been referred to the undersigned, the undersigned ordered Navasca to

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stop running CCleaner on any computer(s) in his custody and/or under his control, ordered the

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parties to meet and confer, and scheduled a briefing schedule and expedited hearing for January

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31, 2013 at 2:00 p.m. See Doc. No. 44. The parties filed their supplemental briefing as ordered,

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indicating they had agreed to image Navasca’s hard drive(s), but that other issues remained. See

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Doc. Nos. 46 & 47. However, neither party appeared at the January 31, 2013 hearing. Doc. No.

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48.

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The court has reviewed the letter briefs filed by the parties and concludes that its prior

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order (Doc. No. 44) adequately preserves the status quo with regard to the alleged spoliation

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issue. Navasca shall not run CCleaner on any computer(s) in his custody and/or under his control,

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and the parties shall image his hard drive(s). As Navasca notes in his letter brief, Plaintiff

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propounded its first discovery requests on January 24, 2013. Doc. No. 47 at 2. Navasca’s

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responses are not yet due. Currently, there is nothing to compel. The additional issues Plaintiff

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raised in its letter brief therefore are not ripe for decision, and the court denies the motion to

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compel without prejudice.

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The court once more urges the parties to meet and confer before asking the court to delve

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into discovery matters that are best resolved by the parties themselves. Furthermore, allegations

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of spoliation are extremely serious, and the court urges Plaintiff to review the facts very carefully

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before pursuing this avenue based solely on an eHow.com article. In particular, Plaintiff should

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review the expert declaration that Navasca filed with his letter brief, to fully understand the

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purpose and effect of CCleaner.

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This order terminates Docket Nos. 38, 46 & 47.

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United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: February 4, 2013
________________________
Nandor J. Vadas
United States Magistrate Judge

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