Konica Minolta Business Solutions, U.S.A., Inc. v. Applied Imaging Systems, Inc. et al

Filing 65

ORDER Modifying Discovery. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KONICA MINOLTA BUSINESS
SOLUTIONS, U.S.A. INC.,
Plaintiff,
Case No.: 15-11254
v.
HONORABLE VICTORIA A. ROBERTS
LOWERY CORPORATION D/B/A
APPLIED IMAGING SYSTEMS, INC., et al.,
Defendants.
/

ORDER MODIFYING DISCOVERY
This suit concerns allegations by Plaintiff, Konica Minolta Business Solutions,
U.S.A., Inc., that Defendants, Lowery Corporation, d/b/a Applied Imaging Systems, Inc.
and several former Konica Minolta employees, have unlawfully taken property and used
and disclosed confidential, trade secret, and proprietary information without Konica
Minolta’s consent and against it’s best interest. Before the Court are several objections
regarding the current discovery plan, in particular concerning the production of mirror
images of electronic devices. On November 30, 2015, the Court received several
objections to the production of mirror images of electronic devices. That afternoon, via
email, the Court ordered the parties to consider several possible modifications to the
discovery plan and to submit proposals about how to proceed by December 3, 2015.
The parties agree to limit discoverable devices to exclude those devices which
were not connected to either Konica Minolta or Applied Imaging Systems computers or
networks. The parties also agree to presumptively exclude pictorial image files from
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being produced for other parties in the case. As a result, the Court orders the following
modifications:
1.

The scope of discovery of electronic devices capable of storing data will
be limited to those that have been utilized at or connected to any
computer or network of Konica Minolta or Applied Imaging Systems.
Discovery also includes email and cloud storage that was accessed on or
connected to a network at Konica Minolta. This is a non-exhaustive list,
and includes without limitation, the device list provided by Plaintiffs’s
expert, Spectrum, in Plaintiff’s December 3, 2015 email as well as any
devices or web-based services which Defendants have actual knowledge
of but that are not listed on the December 3, 2015 Spectrum report.

2.

Production of pictorial image files (JPEG, GIF, and like forms) are
presumptively excluded from being produced to other parties. Plaintiff may
request exceptions to this plan when it appears appropriate under the
circumstances; for example, an exception might be granted if it was shown
that an individual Defendant was likely to have taken a digital photo of
Konica Minolta property or proprietary information. This exclusion limits
production of individual files, but does not limit any Court order pertaining
to the production of complete device mirror copies.

The parties still disagree about which parties’ expert is to conduct data analysis
of the mirror images and about how cost should be allocated. Consequently, the Court
orders the following procedures be used to analyze electronic data and devices:
3.

The Court will order the appointment of an independent master under Rule
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53 of the Federal Rules of Civil Procedure. The master will be an
independent expert who will make mirror copies of the pertinent devices,
conduct the initial decomposition of the mirror image files, and send the
file lists to defense counsel for review.
Pursuant Rule 53, each party must submit to the Court, via electronic
filing, a candidate for nomination as the master by Thursday, December
17, 2015. The recommendation will include a résumé or curriculum vitae
for each master. The parties shall not submit as their recommended
master anyone who would be disqualified under Rule 53(a)(2), which in
pertinent part states “A master must not have a relationship to the parties,
attorneys, action, or court that would require disqualification of a judge
under 28 U.S.C. § 455.” Because the focus is on an independent expert,
the Court does not expect to receive a nomination for a firm currently
retained by any of the parties.
Under Rule 53(g) the Court will fix compensation of the master up front.
The Court has considered arguments made regarding how to allocate data
production and analysis costs. Initially, the Court intends to split the cost of
compensating the master among the parties, but the Court will revisit any
interim ruling, pursuant to Rule 53(g)(3), as discovery progresses and a
merits decision is reached.
4.

As an alternative to the step three process, any Defendant seeking to optout of the above process may elect to enter into an agreement that tracks
the terms and conditions outlined in Plaintiff’s November 24th email, which
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is appended to the end of this order.
5.

In lieu of the selection of a special master, the Court will temporarily stay
the production of mirror images and privilege logs. The Court will reissue a
production deadline after receiving special master nominations.

The conference call scheduled for December 9, 2015 at 1:00 pm is cancelled.
IT IS ORDERED

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: December 9, 2015
The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
December 9, 2015.
s/Linda Vertriest
Deputy Clerk

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