Toppan Photomasks, Inc. v. Park

Filing 92

ORDER re 89 Letter filed by Keun Taek Park and 91 Letter filed by Toppan Photomasks, Inc.; lifting stay of 88 Order on Motion for Sanctions. Signed by Judge Joseph C. Spero on June 17, 2014. (jcslc3S, COURT STAFF) (Filed on 6/17/2014)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

TOPPAN PHOTOMASKS, INC.,

Case No. 13-cv-03323-MMC (JCS)

Plaintiff,
8
v.
9
10

KEUN TAEK PARK,
Defendant.

ORDER RE: DEFENDANT’S REQUEST
FOR LEAVE TO FILE MOTION FOR
RECONSIDERATION
Re: Dkt. Nos. 88, 89, 91

United States District Court
Northern District of California

11
12
13

I.

INTRODUCTION

14

On June 9, 2014, Defendant Keun Taek Park (“Park”) filed a letter requesting leave to file

15

a motion for reconsideration. Dkt. No. 89. The letter also requested a stay of the Court‟s May 29,

16

2014 order granting in part and denying in part Plaintiff Toppan Photomasks, Inc.‟s (“TPI”)

17

motion for sanctions. Id.; Dkt. No. 88 (“Sanctions Order”). On June 11, 2014, the Court ordered

18

TPI to file a response to Park‟s letter. Dkt. No. 90 (“Park Letter”). The Court also stayed the

19

Sanctions Order pending its ruling on Park‟s request for leave to file a motion for reconsideration.

20

Id. On June 12, 2014, TPI filed a response to Park‟s letter. Dkt. No. 91 (“TPI Letter”). For the

21

reasons set out below, the Court GRANTS IN PART AND DENIES IN PART Park‟s request for

22

leave to file a motion for reconsideration. The stay of the Sanctions Order is lifted. Except as to

23

the portion of the Sanctions Order which ordered Park to reimburse TPI for the entire cost of

24

Advanced Discovery (“AD”) fees to date, the Sanctions Order is in full force and effect, as

25

modified by this order.

26

II.

27
28

DISCUSSION
Park requests leave to file a motion for reconsideration of the Sanctions Order under Civil

Local Rule 7-9. See Park Letter at 1. Park argues that reconsideration is appropriate because the

1

Court “could not have discerned” certain relevant facts as a result of the “limited briefing” that

2

Park was allowed. See id. After TPI‟s motion for sanctions, the parties were allowed eight pages

3

total for a joint letter. See Dkt. No. 61. TPI argues that Park fails to meet the standard set out in

4

Rule 7-9 and that Park did not make his request diligently. See TPI Letter at 1. In light of the

5

limited briefing that was allowed, the Court finds that reconsideration of one issue is appropriate.

6

A.

Monetary Sanctions: Advanced Discovery Fees

7

Park seeks reconsideration of the Court‟s findings that Advanced Discovery (“AD”) was

8

“TPI‟s forensic inspector” and that “Park‟s deletion of documents gave rise to the [AD] fees.”

9

Park Letter at 2 (citing Sanctions Order at 4:21–22, 19:7–8). Park also seeks reconsideration of the
award of “the costs of [AD] fees to date.” Id. (citing Sanctions Order at 19:22–23). Park asserts

11
United States District Court
Northern District of California

10

that AD was hired by both parties to be the neutral e-discovery vendor of this case, and it hosts the

12

Relativity electronic document review platform. Id. Park argues that as a result, AD billed for a

13

variety of fees related to the litigation, only a portion of which were related to forensic work that

14

was the subject of TPI‟s motion for sanctions. See id.

15

TPI argues that Park‟s bases for reconsideration are neither new nor disputed. TPI Letter at

16

2. TPI asserts that “Park has been intimately involved in the forensic processing of his electronic

17

devices and is well aware of the fees that have been charged to the parties.” Id. TPI notes that it

18

submitted AD invoices and a declaration from an AD employee in support of the motion for

19

sanctions. Id. (citing Decl. of Danielle Ochs in Supp. of Mot. for Sanctions ¶¶ 14–15, Ex. O; Decl.

20

of Aaron Magley in Supp. of Mot. for Sanctions). TPI points to the Court‟s language that the AD

21

invoices showed the costs of “researching these devices.” Id. (citing Sanctions Order at 5:6).

22

In the Sanctions Order, the Court found that in light of the fact that “Park‟s deletion of

23

documents gave rise to the [AD] fees and prompted the [motion for sanctions],” Park should be

24

responsible for paying the AD fees incurred to date. See Sanctions Order at 19:7–9, 22–23. The

25

intent of the Court‟s language is clear: Park should pay the AD fees associated with the recovery

26

of deleted files that were the subject of TPI‟s motion for sanctions. Accord Net-Com Servs., Inc. v.

27

Eupen Cable USA, Inc., CV 11-2553 JGB SSX, 2013 WL 4007785, at *3 (C.D. Cal. Aug. 5, 2013)

28

(requiring spoliator to “pay the full cost of restoration and production”); Nat’l Ass’n of Radiation
2

1

Survivors v. Turnage, 115 F.R.D. 543, 558–59 (N.D. Cal. 1987) (requiring spoliator to “reimburse

2

plaintiffs for all fees and costs incurred in ascertaining the documents destroyed during the

3

defendant‟s purge and in reconstructing them, if possible”).

4

In concluding that Park should be subject to these monetary sanctions, the Court discerned

5

from the parties‟ arguments and evidence that all of the AD fees arose from AD‟s recovery of

6

deleted files. However, in his letter requesting leave to file a motion for reconsideration, Park

7

asserts that only a portion of the AD fees arose from recovery tasks. In light of the limited briefing

8

that was available to both parties, the Court finds that reconsideration is appropriate on this issue.

9

Accordingly, reconsideration of this issue is GRANTED, but it shall not take the form of new
briefing. Rather, the parties shall include any arguments or evidence on this issue in the briefing

11
United States District Court
Northern District of California

10

regarding attorney‟s fees.

12

B.

13

Park seeks reconsideration of the Court‟s finding that “[o]n August 20, 2013, Park released

14

twelve electronic devices to . . . [AD],” that “Park and his counsel appear to have caused delays in

15

turning over all the Devices to [AD],” and that “Park delayed timely turning over his electronic

16

devices to [AD].” Park Letter at 3 (citing Sanctions Order at 14:20–22, 19:4–5). TPI argues that

17

this argument fails because all of the facts related to this conclusion have been in the record since

18

December 2013. TPI Letter at 2.

19

Delay in Turning Over Devices

In analyzing Park‟s degree of fault in connection with the issue of whether adverse

20

sanctions should be imposed, the Court observed that Park and his counsel may have caused

21

delays in turning over the devices. See Sanctions Order at 14:20–21 (“[T]he Court notes that Park

22

and his counsel appear to have caused delays in turning over all of the devices to [AD] for

23

inspection.”). However, the observations regarding the possible delay were not conclusive or

24

dispositive to the Court‟s key finding that Park had varying degrees of fault from the time that his

25

duty to preserve evidence arose on May 23, 2013 until Judge Chesney‟s order at the temporary

26

restraining order (“TRO”) hearing on July 18, 2013. See Sanctions Order at 13–14. The Court

27

noted the apparent delay caused by Park or his counsel as a possible factor contributing to the

28

findings regarding Park‟s degree of fault, but this factor was not dispositive. Importantly, the
3

1

Court‟s finding of Park‟s bad faith was premised entirely on Park‟s failure to comply with Judge

2

Chesney‟s oral order at the July 18, 2013 TRO hearing and the TRO that was entered that same

3

day. See id. at 14:9–19, 22–25. Accordingly, this issue is not one of material fact, and

4

reconsideration of this issue is DENIED.

5

C.

Files to be Carved

6

Park seeks reconsideration of the Court‟s award that “Park shall pay the costs of carving all
overwritten user files that were deleted or overwritten after his duty to preserve evidence arose on

8

May 23, 2013.” Park Letter at 3 (citing Sanctions Order at 19:23–24). Park argues that an

9

examination of the deleted file logs “makes clear that [AD employee] Magley has an expansive

10

definition of „user-created‟ file[s] and that not all such files deleted after May 23, 2013 are even

11
United States District Court
Northern District of California

7

remotely relevant to the case and need to be carved.” Id. Park proposes that the parties consult

12

with forensic vendors regarding carving and provide the Court with a proposal or proposals on the

13

data carving that should be ordered. See id.

14

TPI argues that a motion for reconsideration is not the appropriate vehicle to address

15

Park‟s concerns. TPI Letter at 2. TPI asserts its position that “[i]f, after TPI determines which files

16

need to be carved, Park objects based on the relevancy of those files, he can bring a motion for a

17

protective order at that time.” Id. TPI argues that “[i]t is premature and inappropriate to seek the

18

Court‟s intervention before anything objectionable has taken place.” Id.

19

The Court agrees with TPI. TPI shall identify the files that it believes should be carved. If

20

Park has any objections to the identified files, then he may bring a motion for a protective order at

21

that time. Accordingly, reconsideration of this issue is DENIED.
TPI’s Request for Reconsideration

22

D.

23

In its letter, TPI wrote: “if the Court decides to grant Park‟s [request for leave to file a

24

motion for reconsideration], TPI requests that the Court similarly allow it to file a motion for

25

reconsideration of its denial of the imposition of adverse inferences.” TPI Letter at 2–3. TPI states

26

that it “has uncovered new material facts just prior to the issuance of the [Sanctions] Order that it

27

believes weigh in favor of granting adverse inferences.” Id. at 3. Specifically, TPI claims to have

28

“uncovered additional forensic evidence that particular key documents evidencing
4

1

misappropriation of trade secrets were deleted by Park, and TPI‟s inability to uncover the original

2

meta data has prejudiced its ability to prove its misappropriation claim.” Id.
In light of the Court‟s narrow grant of Park‟s request for reconsideration, the Court sees no

3
4

reason to reconsider its findings regarding adverse inferences. TPI‟s request is DENIED.

5

III.

6

CONCLUSION
For the foregoing reasons, Park‟s request for leave to file a motion for reconsideration is

GRANTED IN PART AND DENIED IN PART. The stay of the Sanctions Order is lifted, and the

8

parties must file any objection to the Sanctions Order under Rule 72(a) of the Federal Rules of

9

Civil Procedure within fourteen days of the date of this order. See Fed. R. Civ. P. 72. The Court

10

also orders that the parties shall submit a stipulated briefing schedule regarding attorney‟s fees

11
United States District Court
Northern District of California

7

within fourteen days of the date of this order. In the briefing regarding attorney‟s fees, the parties

12

are permitted to include arguments and evidence regarding the portion of AD fees attributable to

13

the recovery of files that were the subject of TPI‟s motion for sanctions.

14
15
16
17

IT IS SO ORDERED.
Dated: June 17, 2014
______________________________________
JOSEPH C. SPERO
United States Magistrate Judge

18
19
20
21

22
23
24
25
26
27
28
5