Connectus LLC v. Ampush Media, Inc.

Filing 198

ORDER granting in part and denying in part 119 Motion to Compel; granting in part and denying in part 124 Motion to Compel; denying 125 Motion to Strike; granting in part and denying in part 126 Motion to Compel; denying 127 Motion to Compel; and granting in part and denying in part 128 Motion to Compel. Signed by Magistrate Judge Julie S. Sneed on 1/27/2017. (LBL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CONNECTUS LLC,
Plaintiff,
v.

Case No: 8:15-cv-2778-T-33JSS

AMPUSH MEDIA, INC. and DGS EDU,
LLC,
Defendants.
___________________________________/
ORDER
THIS MATTER is before the Court on the following six motions: Plaintiff’s Motion to
Compel Responses to Written Discovery from Defendant DGS EDU, LLC (“DGS”) (Dkt. 126)
(“First Motion”), and DGS’s response in opposition (Dkt. 146); Plaintiff’s Motion to Compel
Responses to Plaintiff’s Fourth Set of Requests for Admissions to Defendant Ampush Media, Inc.
(“Ampush”) (Dkt. 127) (“Second Motion”), and Ampush’s response in opposition (Dkt. 131);
DGS’s Motion to Compel Responses to Interrogatories and Document Requests Propounded to
Plaintiff (Dkt. 119) (“Third Motion”), and Plaintiff’s response in opposition (Dkt. 138); DGS’s
Motion to Compel Responses to Requests for Admissions and Document Requests Propounded to
Plaintiff (Dkt. 128) (“Fourth Motion”), and Plaintiff’s response in opposition (Dkt. 148);
Ampush’s Motion to Compel Information and Documents (Dkt. 124) (“Fifth Motion”), and
Plaintiff’s response in opposition (Dkt. 142); and Defendants’ Motion to Strike/Exclude Plaintiff’s
Untimely Disclosed Witnesses, Subjects, Documents, and Damages Theories in its Rule 26 Initial
Disclosures (Dkt. 125) (“Sixth Motion”), and Plaintiff’s response in opposition (Dkt. 144).

BACKGROUND
Plaintiff operates a website that collects information from prospective students that
Plaintiff uses to match the prospects with universities. (Dkt. 106 ¶ 14.) This data, Plaintiff alleges,
is “extraordinarily proprietary and highly valued by Universities seeking to acquire Prospective
Students.” (Dkt. 106 ¶ 14.) Plaintiff refers to prospective students “as well as the proprietary data
acquired therefrom” as “Leads.” (Dkt. 106 ¶ 14.)
Plaintiff matches prospective students with universities either directly or by using
intermediaries who have relationships with universities (“Aggregators”).

(Dkt. 106 ¶ 15.)

Aggregators maintain databases that contain data about the programs offered by universities and
Plaintiff, in determining university matches for prospective students, “‘ping[s]’ data relating to
each Prospective Student against each Aggregator’s portal.” (Dkt. 106 ¶ 17.) After a match is
found, Plaintiff obtains further information from a prospective student and confirms the match.
(Dkt. 106 ¶ 18.) Then, Plaintiff sells the Lead to the Aggregator, who in turn sells the Lead to the
university. (Dkt. 106 ¶ 18.) Plaintiff alleges that it does not, however, “submit or sell Leads to
Aggregators” during the “ping” stage. (Dkt. 106 ¶ 19.)
Ampush is one such Aggregator. (Dkt. 106 ¶ 15.) Plaintiff and Ampush entered into a
contract governing Plaintiff’s sale of Leads to Ampush (“Agreement”). (Dkt. 106 ¶ 20; Dkt. 1061.) DGS is Ampush’s successor in interest who acquired, among other things, the Agreement.
(Dkt. 106 ¶ 21.) Plaintiff alleges that “Defendants had been scraping, digitally copying or
otherwise misappropriating Plaintiff’s proprietary Lead generation data early in Plaintiff’s Lead
generation process, at the Ping/Search Stage, but before Plaintiff had submitted or sold the Lead
to Defendants.” (Dkt. 106 ¶ 25.) Defendants, Plaintiff alleges, then sold the data to third parties.

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(Dkt. 106 ¶¶ 27–29.) Plaintiff contends that these stolen Leads exceed $19 million in value. (Dkt.
106 ¶ 31.)
Among other affirmative defenses, Defendants raise the defenses that Plaintiff’s claims are
barred to the extent Plaintiff consented to the alleged actions, the alleged actions are considered
an acceptable industry practice, and Plaintiff failed to use reasonable efforts to protect any alleged
confidential or proprietary information. (Dkt. 112 at 21; Dkt. 113 at 22.)
On January 20, 2017, the Court entered an order on Defendants’ motion for judgment on
the pleadings and Plaintiff’s motion to amend the complaint. (Dkt. 188.) The Court determined
that California law governed the Agreement, and, accordingly, dismissed Count II, Plaintiff’s
claim for misappropriation of trade secrets under Florida law. (Dkt. 188 at 18.) However, the
Court granted Plaintiff leave to replead its statutory trade secrets claim under California law. (Dkt.
18 at 30.) Next, the Court dismissed Plaintiff’s common law claims, Counts I, III, and IV, as
preempted by California’s Uniform Trade Secrets Act. (Dkt. 188 at 22–23.) As to Plaintiff’s
breach of contract claim, Count V, the Court determined that the Agreement’s limitation of liability
provision is enforceable. (Dkt. 188 at 25.) Finally, the Court dismissed Plaintiff’s claim for
injunctive relief, Count VI, but permitted Plaintiff to seek injunctive relief as a remedy in
connection with its breach of contract claim. (Dkt. 188 at 26.) Plaintiff has leave to file a third
amended complaint by January 30, 2017, and Defendants’ responses are due by February 13, 2017.
(Dkt. 188 at 30–31.)
DISCUSSION
A lengthy hearing on the motions was held before the undersigned on January 24, 2017.
As reflected in the Court’s oral rulings at the hearing, the great majority of the discovery requests
at issue seek information irrelevant to the parties’ claims and defenses, especially in light of

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Plaintiff having leave to replead only two causes of action (Dkt. 188). Fed. R. Civ. P. 26(b)(1).
Further, many of the requests at issue are overly broad. Thus, to permit the discovery would not
be proportional to the needs of the case when considering the burden in responding to the discovery
in comparison to its likely benefit and importance in resolving the case’s issues. Id. Also, in
several instances, the party responding to discovery requests represented to the Court, as in
discovery responses, that, after a diligent search, no responsive documents were located.
Accordingly, and for the reasons stated at the hearing, it is
ORDERED:
1.

The First Motion (Dkt. 126) is GRANTED in part and DENIED in part. The First

Motion is granted as to Interrogatory 6 (Set 2), and Requests for Admissions 13 through 19 and
22. DGS shall supplement its responses by February 7, 2017. The First Motion is denied as to
Interrogatory 5 (Set 2), Request for Production 45 (Set 3), and Requests for Admissions 20, 21, 23
through 28, 30, 32, 34, 36, 38, 40, and 42.
2.

The Second Motion (Dkt. 127) is DENIED.

3.

The Third Motion (Dkt. 119) is GRANTED in part and DENIED in part. At the

hearing, DGS withdrew the Third Motion as to Interrogatories 3 and 24 and Request for Production
9. The Third Motion is granted as to Requests for Production 15 and 20. Plaintiff shall supplement
its responses by February 7, 2017. The Third Motion is denied as to Interrogatories 2, 5, 8, 11, 12,
15 through 17, and 20 through 22, and Requests for Production 11, 14, 16, 19, and 21.
4.

The Fourth Motion (Dkt. 128) is GRANTED in part and DENIED in part. At the

hearing, DGS withdrew the Fourth Motion as to its First Amended Set of Requests for Admissions
1 and 2, and its Second Set of Requests for Production 2, 4, and 4[6]. The Fourth Motion is granted
as to DGS’s First Amended Set of Requests for Admissions 6, 9, and 10, and DGS’s Second Set

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of Requests for Admissions 4 and 5. Plaintiff shall supplement its responses by February 7, 2017.
The Fourth Motion is denied as to DGS’s Second Set of Requests for Production 1, 3, 3[5], 5[7],
6[8], 7[9], 8[10], 9[11], 10[12], 11[13], 12[14], 13[15], and 14[16], and DGS’s Third Set of
Requests for Production 1 through 13; however, Plaintiff shall serve an updated privilege log on
DGS by February 7, 2017.
5.

The Fifth Motion (Dkt. 124) is GRANTED in part and DENIED in part. At the

hearing, Ampush withdrew the Fifth Motion as to Requests for Production 26, 27, 57, and 58. The
Fifth Motion is granted as to Requests for Admission 14 through 16 and Requests for Production
18 through 20, 33 through 35, 56, and 65. The Fifth Motion is granted as to Request for Production
31 to the extent Plaintiff shall produce documentation showing its profits for the years of the
Agreement (Dkt. 106-1), but is denied in all other respects. By February 14, 2017, Plaintiff shall
supplement its responses, including indicating to which requests responsive documents have
already been produced, serve a privilege log on Ampush, and produce to Ampush’s counsel the
production Plaintiff produced to Ampush’s previous counsel. The Fifth Motion is denied as to
Requests for Production 17, 28, 30, 32, 45, and 51 through 53.
6.

The Sixth Motion (Dkt. 125) is DENIED; however, to ameliorate any prejudice to

Defendants, the Court reopens discovery for the limited purpose of allowing Defendants to conduct
the depositions of Naomi Barbeau, Executive Vice President, Call Center Operations, Digital
Media Solutions, LLC, and the following newly-disclosed witnesses: the corporate representatives
for Neutron Interactive, BirdDog Media, Inc., Silverback Learning Solutions, AC Media Inc.,
College Bound Media, Ifficient Media, and Nobel Voice LLC. Defendants’ depositions must be

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completed by February 28, 2017.
DONE and ORDERED in Tampa, Florida on January 27, 2017.

Copies furnished to:
Counsel of Record

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