Hudson Martin Ferrante Street Witten & DeMaria, PC v. David Alan Forsythe

Filing 26

ORDER DENYING 21 PLAINTIFF'S MOTION FOR LEAVE TO TAKE LIMITED EXPEDITED DISCOVERY. Signed by Magistrate Judge Susan van Keulen on 2/10/2017. (svklc2S, COURT STAFF) (Filed on 2/10/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 HUDSON MARTIN FERRANTE STREET WITTEN & DEMARIA, PC, 8 9 10 Plaintiff, v. DAVID ALAN FORSYTHE, United States District Court Northern District of California 11 Case No.16-cv-06551-BLF (SVK) ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO TAKE LIMITED EXPEDITED DISCOVERY Re: Dkt. Nos. 21, 23 Defendant. 12 13 On January 25, 2017, Plaintiff Hudson Martin Ferrante Street Witten & Demaria, PC 14 (“Plaintiff”) filed a Motion for Leave to Take Limited Expedited Discovery. (Dkt. No. 21.) The 15 motion presents a close call on the need for expedited discovery given the ongoing divorce 16 proceedings in state court and the sensitive nature of Plaintiff’s client information that is the 17 subject of the requests. Having reviewed the filings, however, the Court denies without prejudice 18 the motion to allow expedited discovery. 19 20 I. BACKGROUND The parties have been involved in bitter divorce proceedings in Monterey County Superior 21 Court since 2015. (Dkt. No. 1 at ¶ 11.) During the proceedings Plaintiff learned, through 22 admission of Defendant’s counsel, that Defendant maintained a copy of the Plaintiff’s 23 QuickBooks file on his computer, which contained sensitive client information and salary 24 information of Plaintiff’s employees and partners. (Dkt. No. 1 at ¶¶ 24, 26; Dkt. No. 21-4 at ¶ 7.) 25 Plaintiff promptly filed this action on November 10, 2016, claiming violations of the Computer 26 Fraud and Abuse Act, California’s Computer Data Access and Fraud Act, and conversion. (Dkt. 27 No. 1.) Defendant subsequently submitted a declaration in the state court proceedings stating that 28 pursuant to court order, he had provided to Plaintiff a thumb drive with the QuickBooks file and 1 had then destroyed the QuickBooks file that had been in his possession. (See Dkt. No. 8-2 at 1.) 2 Plaintiff then employed a forensic data analysis firm to analyze the thumb drive. (Dkt. 21-8 at ¶¶ 3 5, 11.) The firm determined that the QuickBooks file on the drive “contained a single 4 QuickBooks backup file which was created on or before August 26, 2014. The file was written to 5 the [thumb drive] on October 26, 2016.” (Dkt. 21-8 at ¶ 11.) Plaintiff suggests, without further 6 support, that the original file may still exist in the Defendant’s possession. (See Dkt. 21-3 at 6.) 7 Plaintiff’s proposed discovery requests consist of a request to permit inspection and 8 forensic copying of four specified devices as well as any other device that Defendant identifies as 9 having been used to store, copy, delete, or access any files created or maintained by Plaintiff, 10 United States District Court Northern District of California 11 including Plaintiff’s QuickBooks file. (Dkt. Nos. 21-1, 21-2.) Defendant filed a Motion to Strike in this action on December 16, 2016. (Dkt. No. 8.) 12 Plaintiff filed its Motion for Leave to Take Limited Expedited Discovery on January 25, 2017. 13 The hearing for the Motion to Strike and the Initial Case Management Conference are set for 14 March 16, 2017. (Dkt. No. 14.) 15 16 II. DISCUSSION Generally, a party “may not seek discovery from any source” before the conference 17 required by Rule 26(f). Fed. R. Civ. P. 26(d). However, upon a showing of good cause by the 18 moving party, the court may grant a party leave to take expedited discovery before discovery has 19 formally commenced under Rule 26(d). Apple Inc. v. Samsung Elecs. Co., 768 F. Supp. 2d 1040, 20 1044 (N.D. Cal. 2011). “Good cause may be found where the need for expedited discovery, in 21 consideration of the administration of justice, outweighs the prejudice to the responding party.” 22 Semitool, Inc. v. Tokyo Electron. Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). In determining 23 whether good cause justifies expedited discovery, courts in the Ninth Circuit commonly consider 24 five factors: “(1) whether a preliminary injunction is pending; (2) the breadth of the discovery 25 requests; (3) the purpose for requesting the expedited discovery; (4) the burden on the defendants 26 to comply with the requests; and (5) how far in advance of the typical discovery process the 27 request was made.” Apple Inc., 768 F. Supp. 2d at 1044 (internal quotation and citation omitted). 28 The court must perform this evaluation in light of “the entirety of the record ... and [examine] the 2 1 reasonableness of the request in light of all the surrounding circumstances.” Semitool, 208 F.R.D. 2 at 275 (citation & quotation marks omitted) (emphasis removed). The Court has considered these 3 factors and finds Plaintiff has not met its burden to establish the requisite “good cause” for 4 expedited discovery for the following reasons. First, no preliminary injunction is pending, therefore there are no allegations of irreparable 5 harm that may result from Defendant’s continued possession of the QuickBooks file. Compare 7 with Flextronics Int’l, Ltd. v. Parametric Tech., Corp., No. C 13-0034 PSG, 2013 WL 2303785, at 8 *2 (N.D. Cal. May 24, 2013) (granting limited expedited discovery in a case where a preliminary 9 injunction was pending and discovery was necessary to determine whether defendant continued to 10 infringe on plaintiff’s copyright); Qwest Commc’ns Int’l, Inc. v. WorldQuest Networks, Inc., 213 11 United States District Court Northern District of California 6 F.R.D. 418, 419 (D. Colo. 2003) (denying request for expedited discovery where discovery sought 12 concerned prior bad acts, not a harm that could continue but for injunction). This factor weighs 13 against granting the motion. Second, Plaintiff’s proffered requests are overbroad. Plaintiff seeks to obtain flash copies 14 15 of several of Defendant’s electronic devices, raising issues of privacy. See Fed. R. Civ. P. 34(a) 16 advisory committee’s note to 2006 amendment. Plaintiff seeks flash copies of entire devices and 17 fails to limit its requests to discovery of information that may be relevant to the possession of 18 QuickBooks data. See Flextronics, 2013 WL 2303785, at *2 (denying a motion for expedited 19 discovery in part because the requests related generally to the plaintiff’s Computer Fraud and 20 Abuse Act claims, not the issues raised in a preliminary injunction motion). Plaintiff similarly 21 fails to limit its request to those devices which it knows exist and those devices which it has 22 reason to believe may contain QuickBooks data.1 Finally, Plaintiff does not limit the information 23 that may be revealed to Plaintiff as a result of the forensic analysis2 or the time period the forensic 24 1 25 26 27 28 Plaintiff cites the deposition of Defendant from the state court proceedings to justify its requests of flash copies of a “Lenovo laptop,” a “LabWare laptop,” a “Surface Pro Tablet,” and a “‘HubDesk’ Virtual machine.” (See Dkt. No. 21-1 at 6-7.) However the pages cited do not mention these devices and instead discuss LabWare and HubDesk software, notably not physical devices. (Dkt. No. 21-6.) 2 Plaintiff’s proposed order provides that the forensic copies be made available only to the Court, not Plaintiff. (Dkt. No. 21-9 at 3.) However, this provision is neither included in the proposed discovery requests nor mentioned in the briefing, therefore (continued on next page) 3 1 analysis firm would keep the devices. Therefore the breadth of the requests weighs against 2 granting the motion. See Am. LegalNet, Inc. v. Davis, 673 F. Supp. 2d 1063, 1069 (C.D. Cal. 3 2009) (denying a motion to expedite discovery in part because the requested mirror images “would 4 allow plaintiff to obtain all information on defendants’ internal and external hard drives”). Third, the purpose of the requested discovery presents the closest call. The Court 6 recognizes the sensitive and highly confidential nature of the Plaintiff’s client data and possible 7 dissemination, destruction, or misuse of that data. However, Defendant has submitted a 8 declaration in the state court action confirming that he returned and destroyed the QuickBooks 9 files, and, as discussed below, Plaintiff presents no evidence here that contradicts Defendant’s 10 sworn statement. At best, the request presented to this Court is a request to verify Defendant’s 11 United States District Court Northern District of California 5 state court declaration. Therefore this Court believes the request is more properly directed to the 12 state court proceeding. 13 In support of Plaintiff’s allegations that Defendant still maintains a copy of the 14 QuickBooks file, Plaintiff submitted declarations of Ms. Witten, the former spouse of Defendant 15 and partner at Plaintiff’s firm, and Mr. Brown, the forensic analyst employed by Plaintiff to 16 examine the thumb drive returned by Defendant in the state court proceedings. (See Dkt. Nos. 21- 17 4, 21-8.) Ms. Witten states that she “had the thumb drive reviewed by an IT expert, who has 18 informed [her] that the content on the thumb drive is in fact a copy of a file, and not the original 19 file that was downloaded.” (Dkt. No. 21-4 at ¶ 33.) Mr. Brown’s declaration merely explains that 20 his analysis revealed that he determined that the drive “contained a single QuickBooks backup file 21 . . . that was written to the [thumb drive] on October 26, 2016.” (Dkt. 21-8 at ¶ 11.) Neither 22 declaration suggests that Defendant did not in fact destroy any other copies of the QuickBooks file 23 pursuant to the state court’s protective order.3 Therefore, this factor, although close, also weighs 24 against granting Plaintiff’s motion. See Vasudevan Software, Inc. v. Microstrategy Inc., No. 11- 25 CV-06637-RS-PSG, 2013 WL 1366041, at *2 (N.D. Cal. Apr. 3, 2013) (denying a motion to 26 27 28 its effectiveness is unclear. Regardless, providing forensic copies of numerous unspecified drives to the Court does not alleviate the Court’s concerns regarding Defendant’s right to privacy. 3 Neither party submitted the protective order entered by the state court. 4 1 compel production of email backup for forensic analysis because “[i]n the absence of a strong 2 showing that the responding party has somehow defaulted in [its obligation to maintain and 3 produce emails in litigation], the court should not resort to extreme, expensive, or extraordinary 4 means to guarantee compliance”) (internal citation and quotation omitted). 5 Fourth, given the proposed deadline of production in ten days, the need to review several 6 as yet unspecified devices, and the need for counsel to prepare responses, particularly in light of 7 the final factor below, the burden imposed on Defendant weighs against granting the motion. 8 Finally, in light of the foregoing circumstances and the Case Management Conference and 9 pending Motion to Strike currently scheduled for March 16, 2017, the Court concludes the timing 10 of the request weighs against granting the motion. United States District Court Northern District of California 11 III. 12 For the foregoing reasons, the Court concludes that Plaintiff has not shown good cause to 13 14 15 CONCLUSION justify expedited discovery. Plaintiff’s motion is therefore denied without prejudice. SO ORDERED. Dated: February 10, 2017 16 17 SUSAN VAN KEULEN United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 5

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