Spigot, Inc. et al v. Hoggatt et al

Filing 78

ORDER granting 57 Motion to Quash Plaintiffs' Third-Party Subpoenas; denying 58 Motion for Reconsideration of Magistrate's Order Denying in Part Their Motion to Compel Jurisdictional Discovery; granting in part and denying in part 59 Plaintiffs' Emergency Motion to Compel Deposition Testimony of Jeremy Matthew Hoggatt in His Personal Capacity and as Mediavo, Inc.'s Corporate Representative and Entry of Protective Order; and denying as moot 64 Plaintiffs' M otion for Leave to File a Supplemental Declaration. Defendants shall IMMEDIATELY provide no less than six dates that occur on or before November 22, 2019 for the deposition of Hoggatt in both his personal capacity and as the corporate representative of Mediavo. On or before October 14, 2019, Defendants shall produce any and all documents they may have withheld pending the execution of a confidentiality agreement. See Order for details. Signed by Magistrate Judge Nicholas P. Mizell on 10/8/2019. (Mizell, Nicholas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SPIGOT, INC., POLARITY
TECHNOLOGIES LTD., and
EIGHTPOINT TECHNOLOGIES
LTD.,
Plaintiffs,
v.

Case No:

2:18-cv-764-FtM-29NPM

JEREMY MATTHEW HOGGATT and
MEDIAVO, INC.,
Defendants.
ORDER
This is a trade-secret-infringement action between companies who compete
nationally, if not worldwide, in the field of internet advertising, such as bringing consumers
and advertisers together based on the consumers’ use of internet search engines like
Yahoo. In September 2016, a company in the Cayman Islands known as Eightpoint
Technologies allegedly acquired certain trade secrets from a company in Kansas City,
Missouri known as Adknowledge 1 pursuant to an asset purchase agreement. Eightpoint
licenses these trade secrets to an affiliated company in Cyprus known as Polarity, and to
an affiliated company in Florida known as Spigot. Eightpoint and its affiliates allege that,
after Eightpoint purchased the purported trade secrets, Defendant Jeremy Matthew
Hoggatt, a citizen of Missouri and then-employee of Kansas City-based Adknowledge,
somehow “compiled” the trade secrets and then “absconded” with them in October 2017

1

Adknowledge is now known as V2 Ventures Group. (Doc. 72, p.1). But the parties
continually refer to this entity as Adknowledge, and to avoid any confusion the Court does
so here.

to form Defendant Mediavo, another Kansas City-based company. Mediavo competes
with Defendants by allegedly misusing the purported trade secrets, and allegedly
engaging in improper coding practices by, among other things, distributing certain pieces
of software, which work with internet consumers’ browsers (such as Chrome, Explorer,
Safari or Firefox), after programming them to interfere with similar internet-browser
modules (known as “extensions”) distributed via the internet by Plaintiffs.
Though Plaintiffs allege that Hoggatt is bound by a non-competition clause in the
asset purchase agreement prohibiting misuse of the purported trade secrets, they do not
seek to enforce it here. Instead, Plaintiffs apparently seek via their Complaint in this
action the potentially extra-territorial application of Florida’s trade secrets act and Florida’s
unfair trade practices act to recover at least $10 million in damages allegedly attributable
to “Defendants’ directly competing on the same keywords in Google’s AdWords
advertising platform, and other platforms.” (Doc. 5, p. 24).
In December 2018, Defendants responded to the Complaint by moving to dismiss
for lack of personal jurisdiction, to dismiss or transfer for improper venue, and to dismiss
for failure to state a claim. (Doc. 16). The motion is supported by a detailed declaration
from Hoggatt, founder and CEO of Mediavo, attesting, among other things, that
“[w]hatever intellectual property Plaintiffs may have purchased from Adknowledge … was
owned by Adknowledge in Kansas City, Missouri,” and that if he had acquired any trade
secrets from Adknowledge, he would have done so in Kansas City. (Doc. 16-1, p.5 ¶ 34).
Duly acknowledging circuit precedent, Defendants suggested in their motion to
dismiss that “the Court should order a brief round of jurisdictional discovery.” (Id., p.16).

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Unfortunately, for a variety of reasons, the round of jurisdictional discovery has been
anything but brief. Instead, some ten months later, this matter is before the Court on:
•

Defendants’ Motion to Quash or, in the Alternative, for Entry of a Protective
Order as to Plaintiffs’ Third-Party Subpoenas (Doc. 57);

•

Plaintiffs’ Motion for Reconsideration of Magistrate’s Order Denying in Part
Their Motion to Compel Jurisdictional Discovery (Doc. 58);

•

Plaintiffs’ Emergency Motion to Compel Deposition Testimony of Jeremy
Matthew Hoggatt in His Personal Capacity and as Mediavo Inc.’s Corporate
Representative and Entry of Protective Order (Doc. 59); and,

•

Plaintiffs’ Motion for Leave to File a Supplemental Declaration to Clarify
Defendants’ Misrepresentations in their Opposition to Plaintiffs’ Motion to
Compel Depositions (Doc. 64).

For the reasons set forth below, the motion to quash is granted, the motion for
reconsideration is denied, the motion to compel depositions is granted in part and denied
in part, and the motion for leave to file a supplemental declaration is denied as moot.
I.

The Scope of Jurisdictional Discovery

Rule 26 of the Federal Rules of Civil Procedure governs the scope of discovery in
civil cases. In pertinent part, the Rule states:
Parties may obtain discovery regarding any nonprivileged matter that
is relevant to any party’s claim or defense and proportional to the
needs of the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties’ relative access
to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense
of the proposed discovery outweighs its likely benefit. Information
within this scope of discovery need not be admissible in evidence to
be discoverable.

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Fed. R. Civ. P. 26(b)(1). But jurisdictional discovery should be “narrowly tailored” to
personal jurisdiction issues implicated by the motion to dismiss. See Segregated Portfolio
164 v. IS Agency, Inc., Case No. 8:13-cv-694-T-33TGW, 2013 WL 5744333, *6 (M.D. Fla.
Oct. 23, 2013). Accordingly, “courts generally permit depositions confined to the issues
raised in the motion to dismiss.” Id. at *5 (quoting Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340, 351 (1978)); see also Frontline Int’l, Inc. v. Edelcar, Inc., Case No. 6:10cv-1351-Orl-31DAB, 2011 WL 13209612, *1 (M.D. Fla. Apr. 6, 2011) (jurisdictionaldiscovery deposition of defendant’s corporate representative limited to a “narrow range
of jurisdictional topics concerning minimum contacts.”).
Having affirmatively alleged that neither Defendant is domiciled in Florida, Plaintiffs
do not appear to contend that either Defendant is at home in Florida such that the exercise
of general personal jurisdiction would be proper for any and all claims that might be
asserted against them. So, Plaintiffs must demonstrate that the exercise of case-specific
personal jurisdiction would be proper as to each Defendant. In other words, that the
claims arise from actions of the Defendants directly and substantially connected with this
state. See Walden v. Fiore, 571 U.S. 277, 290 (2014) (“The proper question is not where
the plaintiff experienced a particular injury or effect but whether the defendant’s conduct
connects him to the forum in a meaningful way.”).
Hence, the salient inquiries at this stage of the matter would explore whether
Defendants’ allegedly unfair business practices and alleged misappropriation occurred
within Florida. For instance, when and where did Hoggatt allegedly exercise improper
dominion over the purported trade secrets and transfer them to Mediavo? And where did

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Mediavo’s employees or service providers allegedly misuse trade secrets and allegedly
engage in improper coding practices?
Further, since Defendants argue, based on a professed lack of minimum contacts
with Florida and the absence of their purposeful availment of its laws, that due process
counsels against the exercise of personal jurisdiction even if Florida’s long-arm statue
may be satisfied, Plaintiffs may briefly examine Defendants’ jurisdictional contentions.
See Walden, 571 U.S. at 284 (2014) (“Due process limits on the State’s adjudicative
authority principally protect the liberty of the nonresident defendant – not the convenience
of plaintiffs or third parties.”); see also Hanson v. Denckla, 357 U.S. 235, 253 (1958) (“…it
is essential in each case that there be some act by which the defendant purposefully
avails itself of the privilege of conducting activities within the forum State, thus invoking
the benefits and protections of its laws.”).
II.

Defendants’ Motion to Quash

Following up on Defendants’ suggestion that the parties should undertake a limited
round of jurisdictional discovery to determine whether any purported trade secrets were
acquired in either Florida or Missouri, and which of the three Plaintiffs acquired them (Doc.
16, pp. 17-18), the parties jointly requested leave to conduct “bi-lateral jurisdictional
discovery with time and scope limits.” (Doc. 17, p.1). In particular, they sought leave to
conduct discovery of each other over a four-month period. (Id., pp. 2-3). Granting such
leave, the Court gave Plaintiffs up to and including April 17, 2019, to respond to
Defendants’ Motion to Dismiss. (Doc. 18). Thereafter, the parties further memorialized
in their Case Management Report “that this initial phase of discovery” would focus on the
personal-jurisdiction determination, and they agreed that their limited depositions and

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interrogatories of each other “during the jurisdictional discovery period” would not count
against the standard discovery limits that would otherwise govern the merits phase of
discovery. (Doc. 22, pp. 7, 9; see also Doc. 28, p. 2 § I.C. (“The parties may agree by
stipulation on other limits on discovery.”)). Subsequently, the Court granted joint motions
to extend the jurisdictional discovery period to May 31, 2019 (Doc. 35), and then to August
16, 2019 (Doc. 49).
Contrary to this stipulated and Court-sanctioned bifurcation of discovery, by which
the parties were to conduct discovery of each other concerning the personal-jurisdiction
issues, Plaintiffs attempted in May and June of 2019 to obtain both merits and
jurisdictional discovery from third parties by serving four subpoenas for documents on
Adknowledge, Media.net, Bold Science Media, LLC, and Scott Reinke (Mediavo’s former
general counsel). Arguing that these third-party subpoenas fall outside the permissible
scope of jurisdictional discovery in this case, Defendants seek an order quashing them.
(Doc. 57).
Pursuant to Rule 45, a court may quash or modify a subpoena or, alternatively,
specify conditions for an appearance or production. Fed. R. Civ. P. 45(d)(3). Further, the
Court has broad discretion to manage the scope and sequence of discovery. See Fed.
R. Civ. P. 26.; see also Moore v. Armour Pharm. Co., 927 F.2d 1194, 1197 (11th Cir.
1991) (“The trial court … has wide discretion in setting the limits of discovery, and its
decisions will not be reversed unless a clearly erroneous principle of law is applied, or no
evidence rationally supports the decision.”). Here, the parties jointly requested and the
Court approved an initial phase of discovery during which the parties would conduct
limited discovery of each other concerning the personal jurisdictional issues. Indeed,

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during this jurisdictional discovery period, Plaintiffs have repeatedly asserted that any
merits discovery would be inappropriate. (See, e.g., Doc. 57-1 (asserting no less than 43
such objections)). 2 The Court likewise finds that Plaintiffs’ third-party subpoenas fall
outside the scope of bilateral jurisdictional discovery, and they are therefore quashed.
III.

Plaintiffs’ Motion for Reconsideration

On a similar note, before the Court for the third time is Plaintiffs’ attempt to compel
an answer to an interrogatory that, by Plaintiffs’ own admission, goes to the merits of this
case. Some nine months ago, Plaintiffs served Defendants with nearly fifty discovery
requests, and one remains at issue:
Interrogatory No. 18: Please provide a list of all Mediavo
desktop extensions distributed by Hyperconnect Media, or
any other desktop extensions distributed by Hyperconnect
Media known to Hoggatt and Mediavo.

But as Defendants have repeatedly explained, this request attempts to force Mediavo to
divulge the identity of the Internet-browser modules that it distributes via the Internet to
consumers throughout the nation if not the world. (Docs. 36, p.8; 68, p.2). While the
interrogatory asks about items “distributed by Hyperconnect Media” to Internet-users’
computers as they browse the web, Hyperconnect Media is but one of a number of DBAs,
or brands, associated with Mediavo. And while Hyperconnect was registered as a trade
name for Mediavo by a Florida lawyer utilizing a form provided by the state of Florida,

2

The Court notes that a review of the discovery responses and related motions in this
case reveals that Plaintiffs unfortunately demonstrated a penchant for taking an
unbalanced view toward jurisdictional discovery; viewing the scope of Defendants’
permissible discovery far too narrowly while improperly pursuing a far broader scope for
their own. See, e.g., (Doc. 76-1, pp. 10-12 (Plaintiffs objecting to questions about whether
the purported trade secrets were developed, maintained, or protected in Florida as being
irrelevant to the personal-jurisdiction inquiry)).

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there is apparently nothing more in Florida other than a mailbox in a UPS store associated
with Hyperconnect.

(Docs. 76-2, p. 4; 75-1, pp. 1-2).

The domain name

HyperconnectMedia.com is not registered or located in Florida, none of the persons who
have owned or registered this domain name are located in Florida, none of the persons
who program this website or provide customer or technical support for it are located in
Florida, and none of the information gathered from this site’s contact form is sent to
Florida. (Doc. 41, pp. 3-4).
Moreover, “Plaintiffs agree that the ‘identity of the browser extensions distributed
by Mediavo / Hyperconnect Media is a closely guarded and confidential trade secret,’”
and they concede, first, that this information goes to “the heart of the broader dispute,”
and, second, that an answer to this interrogatory “will not necessarily provide information
regarding Florida.” (Doc. 40, p. 7; see also Doc. 36-2, pp.2-4 ¶¶ 5-14 (attesting to the
trade-secret status of this information)). Accordingly, the Court denied Plaintiffs’ motion
to compel the Defendants to divulge this highly sensitive information during the
jurisdictional-discovery phase of this litigation. (Doc. 49).
Arguing that the Court must have somehow “misinterpreted” their arguments,
Plaintiffs filed an Objection (Doc. 54), but since there was “nothing to suggest that the
Order was clearly erroneous or contrary to law,” the Objection was dismissed. (Doc. 56).
Undaunted, Plaintiffs have filed a motion for reconsideration of the Court’s refusal to
compel an answer to Interrogatory No. 18 (Doc. 58), to which the Defendants have filed
a response (Doc. 68).
Reconsideration of a court’s prior order, however, is an extraordinary remedy and,
thus, an authority that should be used sparingly. See Sprint Solutions, Inc. v. 4 U Cell,

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LLC, Case No. 2:15-cv-605-FtM-38CM, 2016 WL 6037240, *1 (M.D. Fla. Oct. 14, 2016).
Courts have recognized three grounds to justify reconsideration: (1) an intervening
change in the controlling law; (2) the availability of new evidence; (3) the need to correct
clear error or prevent manifest injustice.” See Sussman v. Salem, Saxon & Nielsen, P.A.,
153 F.R.D. 689, 694 (M.D. Fla. 1994). The Court’s opinions are not intended as mere
first drafts, subject to revision and reconsideration at a litigant’s pleasure. Carter v.
Premier Rest. Mgmt., Case No. 2:06-cv-212-FtM-99DNF, 2016 WL 6037240, *1 (M.D.
Fla. Sept. 13, 2006). In short, a motion for reconsideration is not an opportunity to simply
reargue an issue the Court has once determined. Id.
That is all that Plaintiffs do here, and so they have needlessly burdened both the
Defendants and this Court with presentations of the same arguments no less than three
times. The motion for reconsideration is therefore denied.
IV.

Plaintiffs’ Motion to Compel Deposition Testimony3

From the outset of the jurisdictional discovery period—and as early as December
2018—the parties contemplated that Plaintiffs would depose Defendant Hoggatt in his
personal capacity and as the corporate representative of Mediavo, and that Defendants
would take one or two depositions of the Plaintiffs. (Docs. 17, p.3 ¶ 6; 22, p. 7). Despite
the limited and relatively straightforward inquiries to be conducted at this stage, however,

3

While Plaintiffs labeled their motion as an “emergency,” they apparently failed to
appreciate that the use of the term “emergency” may only be used in the most
extraordinary circumstances. Each judge in this Court has hundreds of civil and scores
of criminal cases currently pending, and with speedy-trial rights and other interests at
stake, the criminal cases take priority. When a motion is labeled an “emergency,” the
Court is compelled to immediately divert its attention from other pending matters and to
focus on the purported emergency. Here, there is no pending threat of immediate or
irreparable harm. An impending case-management deadline is not an emergency.

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counsel managed to tie themselves up in knots with disputes about who would be
deposed first and for how long; whether the depositions could go forward without
resolving every issue concerning the production, review and potential filing of documents
with the Court; and, the extent to which they and their clients were proactively taking
reasonable steps to make themselves available for the depositions. This Court has
sometimes found it necessary to take creative steps to resolve such issues, which
counsel should have found a way to resolve themselves. See, e.g., Avista Management,
Inc. v. Wausau Underwriters Ins. Co., Case No. 6:05-CV1430ORL31JGG, 2006 WL
1562246, *1 (M.D. Fla. June 6, 2006) (requiring counsel to engage in a Friday afternoon
game of “rock, paper, scissors” on the courthouse steps to resolve their inability to agree
on the location for a Rule 30(b)(6) deposition). On this occasion, the Court will attempt
to untie the parties’ Gordian knot in a less imaginative fashion.
In the course of resolving this discovery dispute, a few observations based on the
submissions of the parties are in order. First, as they now seem to be well aware,
Defendants’ initial reaction to Plaintiffs’ July 2019 attempt to schedule the personal and
corporate-designee deposition of Hoggatt was wholly inappropriate. With thirty days
remaining in the twice-extended, jurisdictional-discovery period, and apparently willing to
depose Hoggatt while the discovery issues discussed above (and below) remained
unresolved, Plaintiffs asked Defendants’ counsel on July 17 to confirm a date for the
deposition. Defendants’ response: “I’m sorry but it’s too late. The Court won’t extend
grant [sic] you a further extension. And there is simply no time to take depositions.” Not
so.

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While providing more notice is the better practice when reasonable to do so, the
Court’s local rules allow parties to notice depositions with only 14-days’ notice. M.D. Fla.
R. 3.02. Further, the deposition was noticed some six months prior, and the parties had
been talking about scheduling it ever since. With so much time having passed since the
service of the notice, Hoggatt should have already been fully prepared (or at least nearly
so) to testify as Mediavo’s designee, and Hoggatt and his counsel should have taken
steps to make themselves available within the weeks that remained. See Inglis v. Wells
Fargo Bank, N.A., Case No. 2:14-cv-677-FtM-29CM, 2016 WL 4193858, *2 (M.D. Fla.
Aug. 9, 2016) (finding 19 days’ notice adequate for expert-witness depositions despite
their professional obligations). If that was not reasonably possible, then dates within a
week or two after the deadline should have been immediately offered and accepted. See
Middle District Discovery (2015) at 6 (“Counsel, by agreement, may conduct discovery
after the formal completion date”). 4

Multiple options were available to ensure that

Plaintiffs would have had the benefit of this deposition for their response to the motion to
dismiss, such as a brief extension of time for the filing of the response, or leave to
supplement the response as soon as the deposition transcript became available. Had
counsel followed this course, the deposition would have taken place months ago.
The parties and their counsel must also be mindful of their obligations to facilitate
the efficient progress of this case. A witness cannot declare weeks of unavailability
because they would prefer to “prepare for and attend” business meetings and other

4

It is evident from the submissions of the parties that counsel are familiar with the Court’s
local rules and guidelines, including the Court’s Discovery Manual. Counsel are reminded
that all such rules and guidelines are to be construed and employed by both the Court
and the parties “to secure the just, speedy, and inexpensive determination of every
action and proceeding.” Fed. R. Civ. P. 1.

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events.

While reasonable accommodations should be made for personal and

professional obligations, the parties and their counsel must also reschedule events,
delegate tasks, and take other reasonable steps to advance this case to a timely
resolution consistent with the Court’s orders. Cf. Dude v. Congress Plaza, LLC, No. 1780522, 2018 WL 3432714, *4 (S.D. Fla. July 16, 2018) (“A party seeking to prevent or
delay a deposition on medical grounds must make a specific and documented factual
showing that the deposition will be dangerous to the deponent’s health.”) (cleaned up).
Further, the submissions of the parties reveal that counsel attempted to
precondition the depositions of their clients based on the scheduling of the depositions of
their opponents. But subjecting the scheduling of fact witness depositions to a game of
“I’ll show my cards, if you’ll show yours first, or at the same time” is improper. See Fed.
R. Civ. P. 26(d)(3); see also Inglis, 2016 WL 4193858, *2 (rejecting plaintiff counsel’s
attempt to control the sequence of expert witness depositions); Bell v. Circle K. Stores,
Inc., 8:18-cv-1296-T-SPF, 2018 WL 6656770, *1 (M.D. Fla. Nov. 13, 2018) (denying
defendant’s attempt to control sequence of discovery such that surveillance video would
be withheld until after plaintiff was deposed). Such gamesmanship inevitably increases
both the time and expense of litigation, as it has done here.
Turning to the substance at hand, the jurisdictional-discovery deposition of
Hoggatt, in both his personal capacity and as the corporate designee of Mediavo, shall
go forward. Upon the entry of this Order, Defendants shall immediately provide no less
than six days that fall within the next six weeks for the deposition to take place, and
Plaintiffs will accept one of them. Notwithstanding the deposition notices, Plaintiffs may
elect to produce Hoggatt for deposition in Kansas City, Missouri, and the deposition will

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be limited to: (a) when and where did Hoggatt allegedly acquire the purported trade
secrets and transfer them to Mediavo; (b) where did activities related to Mediavo’s
allegedly improper coding practices take place; (c) Mediavo’s contacts with Florida that
relate to the alleged misappropriation and misuse of the purported trade secrets or
allegedly improper coding practices (including any relationships prior to the filing of the
Complaint with individuals or entities in Florida); (d) Mediavo’s contacts with Florida that
it does not have with every other state in the Union (including any direct or indirect
financial interests in subsidiaries or other entities in Florida); (e) Defendants’ answers to
interrogatories and the documents produced by Defendants in response to requests for
production; and (f) Hoggatt’s declarations dated November 30, 2018 and August 25,
2019.

As for the length of the deposition, Plaintiffs will have up to 240 minutes,

Defendants will have up to 120 minutes, and the clock runs except for mutually agreed
breaks. The parties shall be reasonable and cooperative in affording each other the
opportunity for follow-up questions within the time allotted.
V.

The Confidentiality Agreement

Another source of unnecessary delay in this case is the parties’ failure to arrive at
a mutually agreeable confidentiality agreement. As was previously provided in the Case
Management and Scheduling Order:
The parties may reach their own agreement regarding the
designation of materials as “confidential.” There is no need
for the Court to endorse the confidentiality agreement. The
Court discourages unnecessary stipulated motions for
protective order. The Court will enforce stipulated and signed
confidentiality agreements.

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(Doc. 28, § I.F.).

Nevertheless, Plaintiffs previously moved the Court to adopt a

confidentiality agreement (Doc. 37), even though Defendants opposed its terms (Doc.
42). Given the absence of agreement, the Court denied the motion. (Doc. 48). Plaintiffs
objected (Doc. 51), but because the order declining to adopt a contested confidentiality
agreement was not clearly erroneous or contrary to law, the objection was overruled.
(Doc. 55). And as they have done with their attempt to compel a response to Interrogatory
No. 18 (discussed above), Plaintiffs now take a third run at attempting to secure a
contested confidentiality agreement.
Notably, this issue should have been put to rest long ago. On November 19, 2018,
the parties received the Court’s Track Two Notice, which directed the parties to conduct
their discovery-plan meeting within thirty days “after service of the complaint upon any
defendant, or the first appearance of any defendant.” (Doc. 8, pp. 1-2). The parties were
further directed to file their Case Management Report, using the form attached to the
Track Two Notice, within 14 days after the meeting. (Doc. 8, p. 2). This procedure
contemplates that the parties will diligently prepare for the meeting, consider and discuss
proposed terms of any confidentiality agreement at the meeting, and exchange drafts of
any proposed confidentiality agreement prior to and immediately after the meeting as
necessary. In fact, the form report provided to the parties calls for them to memorialize
their agreements concerning any confidentiality agreements when they file their Case
Management Report. (Doc. 8, p.9).
The parties conducted their discovery-plan meeting via an in-person conference
at the offices of defense counsel in Miami on December 12, 2018. (Doc. 22, p.3). In the
Case Management Report jointly filed by the parties fourteen days later, they informed

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the Court: “The parties will execute a confidentiality agreement.” (Doc. 22, p.9). Ten
months later, it appears the parties have yet to do so. And the impediment is nothing
short of baffling.
The hang up appears to be Defendants’ belief that they should be able to designate
material as “protected” and thereby prevent Plaintiffs from filing any such material with
the Court or force them to move the Court for permission to do so – even if the parties
previously attempted to file the material under seal and the Court did not allow it. But an
order denying a motion to seal would necessarily constitute a finding that the material is
not worthy of such protection because it does not pose a risk of disclosing a trade secret
or other valuable and sensitive proprietary information.
Worse yet, Defendants had previously agreed to a provision concerning this issue
as far back as April 1, 2019, and defense counsel even went on to concede on July 24,
2019: “I continue to believe there is no reason to account for what happens if the court
denies a motion to seal.” (Doc. 59-5, p.7). While the Court may not have a complete
record of the months of back-and-forth between the parties, and it does not invite or
suggest any further submissions or motions about the parties’ attempts – prior to the entry
of this Order – to reach a confidentiality agreement, it does seem worthwhile to remind
Defendants and their counsel of their obligations to comply with both the letter and spirit
of Local Rule 2.04(h): “Attorneys and litigants should conduct themselves with civility and
in a spirit of cooperation in order to reduce unnecessary cost and delay.”
The Court once again declines to judicially impose a confidentiality agreement
upon the parties. But to facilitate the upcoming deposition of Hoggatt, Defendants shall
within five days of the entry of this Order produce any and all documents they might still

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be withholding pending the execution of a confidentiality agreement. Until a confidentiality
agreement is reached, Plaintiffs will refrain from filing “protected” material with the Court
and shall handle all such documents as if every other provision of the draft agreement
(Doc. 59-6) – that is, all but paragraph 12.4 – are stipulated obligations of the parties.
Accordingly, and as set forth above, Plaintiffs’ motion to compel is granted in part and
denied in part.
VI.

Sanctions

The pending motions resolved by this Order contain countervailing requests for
sanctions. But neither side is blameless, and both are at fault; both for the unnecessary
delay in the progress of this matter and the needless burdens placed on the parties and
the Court to get this case back on track. The requests for sanctions are denied.
Accordingly, it is hereby ORDERED:
1. Defendants’ Motion to Quash or, in the Alternative, for Entry of a Protective
Order as to Plaintiffs’ Third-Party Subpoenas (Doc. 57) is GRANTED.
2. Plaintiffs’ Motion for Reconsideration of Magistrate’s Order Denying in Part
Their Motion to Compel Jurisdictional Discovery (Doc. 58) is DENIED.
3. Plaintiffs’ Emergency Motion to Compel Deposition Testimony of Jeremy
Matthew Hoggatt in His Personal Capacity and as Mediavo, Inc.’s Corporate
Representative and Entry of Protective Order (Doc. 59) is GRANTED in part
and DENIED in part.
a. Defendants shall IMMEDIATELY provide no less than six dates that
occur on or before November 22, 2019 for the deposition of Hoggatt in
both his personal capacity and as the corporate representative of

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Mediavo. Plaintiffs shall accept one of the dates offered. Plaintiffs shall
have up to 240 minutes and Defendants will have up to 120 minutes.
Unless the parties otherwise agree to a different location, the deposition
will take place in Kansas City, Missouri.
b. As discussed more fully above, the scope of the deposition shall be
limited to:
i. When and where Hoggatt allegedly acquired the purported trade
secrets and transferred them to Mediavo;
ii. Where did activities related to Mediavo’s allegedly improper
coding practices take place;
iii. Mediavo’s contacts with Florida that relate to the alleged
misappropriation and misuse of the purported trade secrets or
allegedly improper coding practices;
iv. Mediavo’s contacts with Florida that it does not have with every
other state in the United States;
v. Defendants’ answers to interrogatories and the documents
produced by Defendants in response to requests for production;
and
vi. Hoggatt’s declarations dated November 30, 2018 and August 25,
2019.
c. As set forth more fully above, on or before October 14, 2019,
Defendants shall produce any and all documents they may have
withheld pending the execution of a confidentiality agreement.

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4. Plaintiffs’ Motion for Leave to File a Supplemental Declaration to Clarify
Defendants’ Misrepresentations in their Opposition to Plaintiffs’ Motion to
Compel Depositions (Doc. 64) is DENIED AS MOOT.
DONE and ORDERED in Fort Myers, Florida on October 8, 2019.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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