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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HUDSON MARTIN FERRANTE STREET
WITTEN & DEMARIA, PC,

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Plaintiff,
v.
DAVID ALAN FORSYTHE,

United States District Court
Northern District of California

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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.

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On January 25, 2017, Plaintiff Hudson Martin Ferrante Street Witten & Demaria, PC

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(“Plaintiff”) filed a Motion for Leave to Take Limited Expedited Discovery. (Dkt. No. 21.) The

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motion presents a close call on the need for expedited discovery given the ongoing divorce

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proceedings in state court and the sensitive nature of Plaintiff’s client information that is the

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subject of the requests. Having reviewed the filings, however, the Court denies without prejudice

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the motion to allow expedited discovery.

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I.

BACKGROUND

The parties have been involved in bitter divorce proceedings in Monterey County Superior

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Court since 2015. (Dkt. No. 1 at ¶ 11.) During the proceedings Plaintiff learned, through

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admission of Defendant’s counsel, that Defendant maintained a copy of the Plaintiff’s

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QuickBooks file on his computer, which contained sensitive client information and salary

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information of Plaintiff’s employees and partners. (Dkt. No. 1 at ¶¶ 24, 26; Dkt. No. 21-4 at ¶ 7.)

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Plaintiff promptly filed this action on November 10, 2016, claiming violations of the Computer

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Fraud and Abuse Act, California’s Computer Data Access and Fraud Act, and conversion. (Dkt.

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No. 1.) Defendant subsequently submitted a declaration in the state court proceedings stating that

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pursuant to court order, he had provided to Plaintiff a thumb drive with the QuickBooks file and

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had then destroyed the QuickBooks file that had been in his possession. (See Dkt. No. 8-2 at 1.)

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Plaintiff then employed a forensic data analysis firm to analyze the thumb drive. (Dkt. 21-8 at ¶¶

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5, 11.) The firm determined that the QuickBooks file on the drive “contained a single

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QuickBooks backup file which was created on or before August 26, 2014. The file was written to

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the [thumb drive] on October 26, 2016.” (Dkt. 21-8 at ¶ 11.) Plaintiff suggests, without further

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support, that the original file may still exist in the Defendant’s possession. (See Dkt. 21-3 at 6.)

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Plaintiff’s proposed discovery requests consist of a request to permit inspection and

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forensic copying of four specified devices as well as any other device that Defendant identifies as

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having been used to store, copy, delete, or access any files created or maintained by Plaintiff,

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United States District Court
Northern District of California

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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.)

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Plaintiff filed its Motion for Leave to Take Limited Expedited Discovery on January 25, 2017.

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The hearing for the Motion to Strike and the Initial Case Management Conference are set for

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March 16, 2017. (Dkt. No. 14.)

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II.

DISCUSSION

Generally, a party “may not seek discovery from any source” before the conference

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required by Rule 26(f). Fed. R. Civ. P. 26(d). However, upon a showing of good cause by the

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moving party, the court may grant a party leave to take expedited discovery before discovery has

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formally commenced under Rule 26(d). Apple Inc. v. Samsung Elecs. Co., 768 F. Supp. 2d 1040,

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1044 (N.D. Cal. 2011). “Good cause may be found where the need for expedited discovery, in

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consideration of the administration of justice, outweighs the prejudice to the responding party.”

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Semitool, Inc. v. Tokyo Electron. Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). In determining

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whether good cause justifies expedited discovery, courts in the Ninth Circuit commonly consider

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five factors: “(1) whether a preliminary injunction is pending; (2) the breadth of the discovery

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requests; (3) the purpose for requesting the expedited discovery; (4) the burden on the defendants

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to comply with the requests; and (5) how far in advance of the typical discovery process the

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request was made.” Apple Inc., 768 F. Supp. 2d at 1044 (internal quotation and citation omitted).

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The court must perform this evaluation in light of “the entirety of the record ... and [examine] the
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reasonableness of the request in light of all the surrounding circumstances.” Semitool, 208 F.R.D.

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at 275 (citation & quotation marks omitted) (emphasis removed). The Court has considered these

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factors and finds Plaintiff has not met its burden to establish the requisite “good cause” for

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expedited discovery for the following reasons.
First, no preliminary injunction is pending, therefore there are no allegations of irreparable

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harm that may result from Defendant’s continued possession of the QuickBooks file. Compare

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with Flextronics Int’l, Ltd. v. Parametric Tech., Corp., No. C 13-0034 PSG, 2013 WL 2303785, at

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*2 (N.D. Cal. May 24, 2013) (granting limited expedited discovery in a case where a preliminary

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injunction was pending and discovery was necessary to determine whether defendant continued to

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infringe on plaintiff’s copyright); Qwest Commc’ns Int’l, Inc. v. WorldQuest Networks, Inc., 213

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United States District Court
Northern District of California

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F.R.D. 418, 419 (D. Colo. 2003) (denying request for expedited discovery where discovery sought

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concerned prior bad acts, not a harm that could continue but for injunction). This factor weighs

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against granting the motion.
Second, Plaintiff’s proffered requests are overbroad. Plaintiff seeks to obtain flash copies

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of several of Defendant’s electronic devices, raising issues of privacy. See Fed. R. Civ. P. 34(a)

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advisory committee’s note to 2006 amendment. Plaintiff seeks flash copies of entire devices and

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fails to limit its requests to discovery of information that may be relevant to the possession of

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QuickBooks data. See Flextronics, 2013 WL 2303785, at *2 (denying a motion for expedited

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discovery in part because the requests related generally to the plaintiff’s Computer Fraud and

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Abuse Act claims, not the issues raised in a preliminary injunction motion). Plaintiff similarly

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fails to limit its request to those devices which it knows exist and those devices which it has

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reason to believe may contain QuickBooks data.1 Finally, Plaintiff does not limit the information

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that may be revealed to Plaintiff as a result of the forensic analysis2 or the time period the forensic

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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.)
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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)
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analysis firm would keep the devices. Therefore the breadth of the requests weighs against

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granting the motion. See Am. LegalNet, Inc. v. Davis, 673 F. Supp. 2d 1063, 1069 (C.D. Cal.

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2009) (denying a motion to expedite discovery in part because the requested mirror images “would

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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

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recognizes the sensitive and highly confidential nature of the Plaintiff’s client data and possible

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dissemination, destruction, or misuse of that data. However, Defendant has submitted a

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declaration in the state court action confirming that he returned and destroyed the QuickBooks

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files, and, as discussed below, Plaintiff presents no evidence here that contradicts Defendant’s

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sworn statement. At best, the request presented to this Court is a request to verify Defendant’s

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United States District Court
Northern District of California

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state court declaration. Therefore this Court believes the request is more properly directed to the

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state court proceeding.

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In support of Plaintiff’s allegations that Defendant still maintains a copy of the

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QuickBooks file, Plaintiff submitted declarations of Ms. Witten, the former spouse of Defendant

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and partner at Plaintiff’s firm, and Mr. Brown, the forensic analyst employed by Plaintiff to

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examine the thumb drive returned by Defendant in the state court proceedings. (See Dkt. Nos. 21-

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4, 21-8.) Ms. Witten states that she “had the thumb drive reviewed by an IT expert, who has

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informed [her] that the content on the thumb drive is in fact a copy of a file, and not the original

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file that was downloaded.” (Dkt. No. 21-4 at ¶ 33.) Mr. Brown’s declaration merely explains that

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his analysis revealed that he determined that the drive “contained a single QuickBooks backup file

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. . . that was written to the [thumb drive] on October 26, 2016.” (Dkt. 21-8 at ¶ 11.) Neither

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declaration suggests that Defendant did not in fact destroy any other copies of the QuickBooks file

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pursuant to the state court’s protective order.3 Therefore, this factor, although close, also weighs

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against granting Plaintiff’s motion. See Vasudevan Software, Inc. v. Microstrategy Inc., No. 11-

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CV-06637-RS-PSG, 2013 WL 1366041, at *2 (N.D. Cal. Apr. 3, 2013) (denying a motion to

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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.
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Neither party submitted the protective order entered by the state court.
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compel production of email backup for forensic analysis because “[i]n the absence of a strong

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showing that the responding party has somehow defaulted in [its obligation to maintain and

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produce emails in litigation], the court should not resort to extreme, expensive, or extraordinary

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means to guarantee compliance”) (internal citation and quotation omitted).

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Fourth, given the proposed deadline of production in ten days, the need to review several

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as yet unspecified devices, and the need for counsel to prepare responses, particularly in light of

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the final factor below, the burden imposed on Defendant weighs against granting the motion.

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Finally, in light of the foregoing circumstances and the Case Management Conference and

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pending Motion to Strike currently scheduled for March 16, 2017, the Court concludes the timing

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of the request weighs against granting the motion.

United States District Court
Northern District of California

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III.

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For the foregoing reasons, the Court concludes that Plaintiff has not shown good cause to

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CONCLUSION

justify expedited discovery. Plaintiff’s motion is therefore denied without prejudice.
SO ORDERED.
Dated: February 10, 2017

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SUSAN VAN KEULEN
United States Magistrate Judge

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