Shaposhnik et al v. HP Enterprise Services, LLC

Filing 82

AMENDED ORDER GRANTING IN PART, DENYING IN PART AND HOLDING PART IN ABEYANCE DEFENDANT'S 57 Motion to Compel and Extend Fact Discovery. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

YONA SHAPOSHNIK AND
PRISTINE MACHINE, LLC,
Plaintiffs,
v.

Case No. 16-13945
Honorable Victoria A. Roberts

HP ENTERPRISE SERVICES, LLC,
Defendant.
_______________________________/
AMENDED1 ORDER GRANTING IN PART, DENYING IN
PART AND HOLDING PART IN ABEYANCE DEFENDANT’S
MOTION TO COMPEL AND EXTEND FACT DISCOVERY [DOC. 57]
I.

INTRODUCTION
Defendant, HP Enterprise Services, LLC (“HPES”), filed the above-entitled

motion. It is fully briefed. The Court:
1. GRANTS IN PART HPES’s request that Sofer, Weiss and Newman be
compelled to produce documents responsive to subpoena requests, although they must
submit for depositions;
2. GRANTS HPES’s request that Plaintiffs’ use of Mr. Shaposhnik’s hard drive
be limited to only those files Plaintiffs have identified as relevant;
3. DENIES HPES’s request that Plaintiffs be compelled to respond to its
discovery request; and
4. HOLDS IN ABEYANCE HPES’s request that the Court extend fact discovery.

1

This amended order contains clerical revisions only; no substantive changes were
made.

II.

DISCUSSION
A.

HPES’S REQUEST THAT SOFER, WEISS AND NEWMAN BE
COMPELLED TO PRODUCE DOCUMENTS RESPONSIVE TO
SUBPOENA REQUESTS

HPES asks the Court for an order compelling Schlomo Weiss, Josef Sofer and
Hallel Newman to respond to subpoena requests. HPES says that at all relevant times,
Sofer was the Chief Operating Officer for Plaintiff Pristine; Weiss was its Senior Vice
President in charge of Business Development; and, Newman was Pristine Machine’s
Executive Vice President for Operations and Communications. All three are third
parties who live outside of Michigan. Plaintiffs deny they were officers of Pristine
Machine.
Plaintiffs and Weiss, Sofer and Newman make a number of procedural
objections, invoking the requirements of Fed. R, Civ. P. 45 (a)(4), (b)(1), (c)(2)(a), (d)
and (e). They say HPES failed to adhere to certain requirements, namely that: (1)
notice needed to go to all parties; (2) HPES is prohibited from deposing persons at sites
more than 100 miles from where they live; (3) HPES seeks compliance with the
subpoenas in the wrong court; and (4) the subpoenas did not allow a reasonable time to
reply.
Plaintiffs waived these procedural objections by failing to timely respond to
HPES’s subpoenas. Olivia Marie, Inc. v. Travelers Cas. Ins. Co. of Am., No. 11-12394,
2011 WL 6739400, at *2 (E.D. Mich. Dec. 22, 2011) (“A nonparty’s failure to timely
object to the subpoena generally waives any objections.”). However, because the third
parties did respond substantively, and their responses were less than three weeks late,
the Court will allow their substantive objections to stand and be resolved on the merits.
2

Substantively, Sofer, Weiss and Newman claim the requests are overbroad and
unduly burdensome; are duplicative and seek irrelevant materials; and are not crafted to
minimize the burden on them, in violation of Fed. R. Civ. P. 45(d)(1)’s requirement to
avoid imposing an undue burden on the person subject to the subpoena. Following are
the five requests at issue (as amended), followed by the paraphrased responses set
forth in the responses to the motion because HPES failed to isolate the formal
responses in its motion:
Request 1. All documents and communications which refer or relate to
any agreements or contracts between Yona Shaposhnik and
his employer, including Electronic Data Systems Corporation
and HP Enterprise Services, LLC.
RESPONSE: HPES’s request is vague and ambiguous, overly broad and unduly
burdensome and duplicative of other requests to which Respondent produced
documents. “His employer” is not defined and is otherwise vague as Mr. Shaposhnik’s
employer is not EDS or HPES and “his employer” is not relevant to any of the claims. It
also begs the question as to why HPES would think Respondent has any documents
related to this topic as they did not meet Mr. Shaposhnik until 2014 or later as he
testified to at his depositions in New York.
ORDER: Shaposhnik is required to produce employment related
communications as requested, between him and any predecessor to HPES.
Request 2. All documents and communications which refer or relate to
any inventions by Yona Shaposhnik, including any inventions
Yona Shaposhnik invented with others.
RESPONSE: This request is vague and ambiguous, overly broad and unduly
burdensome and duplicative of other requests to which Respondent produced
documents. Since requests 5, 6, 7, 9, and 10 already ask for every document related to
3

the patents, this request adds no further categories that are relevant, is not properly
defined, or seeks information that is not relevant or specific in nature.
ORDER: Plaintiffs’ response to 5, 6, 7, 9 and 10 are sufficient to answer this
request.
Request 3. All documents and communications referring or relating to the
loss of any potential, actual or former investors, employees,
workers, customers, clients, partners, members, and/or third
party contractors of Pristine Machine , LLC because of any
alleged action taken by HP Enterprise Services, LLC.
RESPONSE: This is vague and ambiguous, overly broad and unduly
burdensome and duplicative of other requests. For example, Request 4 seeks “All
documents and communications referring or relating to Pristine Machine, LLC’s loss of
any actual or potential investors.” To the extent the request seeks information related to
the patents, ownership, technology or investments, the Respondent has already
searched for and produced documents.
ORDER: Plaintiffs’ response to other requests is sufficient.
Request 8. All documents and communications referring or relating to the
assignments filed by HP Enterprise Services, LLC with the U.S.
Patent and Trademark Office.
RESPONSE: This request is vague and ambiguous, overly broad and unduly
burdensome and duplicative of other requests. Document requests 5, 6, and 7 ask for
all documents related to the ‘926 patent, technology, ownership and assignments. Can
there be anything else left related to the patents not covered by such a broad request?
Assignment is a subcategory of ownership, making these requests duplicative.
Likewise, requests 9 and 10 ask for all documents related to the ‘patent, technology,
and ownership of the [‘937] patent. Request 8 seemed to parallel request 5. Since
4

requests 5, 7, and 10 already cover assignments request 8 has no further meaning, is
not properly defined, or seeks information that is not relevant.
ORDER: Plaintiffs’ responses to other requests are sufficient.
Request 13. All documents and communications referring or relating to HP
Enterprise Services, LLC and/or Electronic Data Systems
Corporation.
RESPONSE: This request is vague and ambiguous, overly broad and unduly
burdensome and duplicative of other requests to which Respondent produced
documents. This request is overly broad as seeking information not relevant to any of
the parties’ claims. Respondent asked HPES to narrow the request and HPES refused.
To the extent it seeks information related to the patents, ownership, technology or its
investments, the Respondent has already searched for and produced documents.
ORDER: Plaintiffs’ responses to other requests are sufficient.
B.

HPES’S REQUEST THAT PLAINTIFFS’ USE OF MR. SHAPOSHNIK’S
HARD DRIVE BE LIMITED TO ONLY THOSE FILES PLAINTIFFS
IDENTIFY AS RELEVANT

Plaintiffs’ failure to identify specific files on Mr. Shaposhnik’s hard drive has been
brought to the Court’s attention before. [See Doc. #44]. HPES filed this earlier motion
on January 5, 2018, after it received 830,000 documents on a hard drive, which
Plaintiffs did not key as responsive to any particular requests. The Court preliminarily
reviewed the motion and sent an e-mail to counsel to schedule a conference call. [See
Doc. #49]. In that e-mail, the Court stated:
3.
Plaintiffs’ production of over 800,000 documents on a
disc - not bates stamped or keyed to particular requests from
the defense - is unacceptable.
[Id.].
5

The Court held a telephone conference on January 25, 2018. At that time, the
Court stated:
But, Mr. Watson, to send a hard drive that has 800,000
documents on it and to not give any guidance or
direction . . . as to where to begin looking for what they are
asking for is completely not reasonable. So[,] I think that
your client bears the responsibility of going through that hard
drive and figuring out what is responsive to what they’ve
asked for and we’ll deal with an issue of costs later, but I
can’t say that their request to you has been overly
burdensome right now. Why you thought 800,000
documents would be responsive to them or helpful to them in
the form that you sent is puzzling to me.
[Doc. #81, pp. 24-25].
The parties also agreed during the conference call that defense counsel would
return the hard drive to Plaintiffs so that they could “help [HPES] navigate what’s in it”
and provide “some direction . . . in terms of what is . . . responsive to [its] document
requests.” [Id., pp 22-23].
On February 28, 2018, counsel for Plaintiffs sent an e-mail to defense counsel
providing further identification of information on the hard drive and stating:
The hard drive and its contents are also responsive to
Defendant’s request for production of documents including
the amended requests for documents to Yona Shaposhnik
numbered 1, 2, 3, 5, 10, 14, 15, 19, 23, 24, 25, 29, 30, 41,
42 and 59.
Of particular relevance are files stored in directories \Tomcat
5.0 and \Projects. We invite you to inspect those files with
the copy of the hard drive you took in October of 2017 and
still in your possession.
[Doc. #57-12].
Based on the January 26th conference call and February 28th e-mail, the Court
orders Plaintiffs to identify with specificity, which particular documents and pages in the
6

hard drive relate to amended requests numbered: 1, 2, 3, 5, 10, 14, 15, 19, 23, 24, 25,
29, 30, 41, 42 and 59. Beyond those documents, the only other documents on the disc
that Plaintiffs will be allowed to rely upon are those in the two directories labelled
“Tomcat5.0” and “Projects.”
C.

REQUEST THAT PLAINTIFFS BE COMPELLED TO RESPOND TO
HPES’S DISCOVERY REQUESTS

HPES says that over the last eight months, Plaintiffs failed to produce documents
responsive to a number of discovery requests, or review documents produced by other
individuals. HPES says this shows that Plaintiffs did not undertake a “reasonable
search” for responsive documents.
HPES’s motion does not get much more specific than this. HPES attaches its
Amended First Set of Requests for Production of Documents to Mr. Shaposhnik and its
Amended First Set of Requests for Production of Documents to Pristine Machine, but
does not state the specific answers and production that are objectionable.
HPES says in general terms in the motion that Plaintiffs responded with
boilerplate objections; that Plaintiffs represented they would supplement responses and
they now – only in response to the HPES’s motion – attached declarations from Mr.
Shaposhnik stating he undertook reasonable searches to locate responsive documents
on behalf of himself and Pristine Machine.
In response to HPES’s motion, Plaintiffs attach certifications to their papers.
These certifications attest that Mr. Shaposhnik performed diligent searches of records
and found no further documents responsive to the requests that were not already
produced to the defense.
The Court denies this portion of HPES’s motion.
7

Aside from providing the Court with the full set of requested discovery, HPES
does not tell the Court which of Plaintiffs’ specific responses are objectionable, leaving it
to the Court to discern what discovery requests are deficient. The Court will not
undertake this task.
Finally, it appears by the two signed certifications attached to Plaintiffs’ response
to the motion, that Mr. Shaposhnik believes he has satisfied HPES’s inquiry.
Accordingly, Mr. Shaposhnik is bound by these certifications, and will not be allowed to
produce or rely upon any documents not yet produced that would be responsive, if this
case proceeds to trial.
D.

REQUEST TO EXTEND FACT DISCOVERY

HPES asks the Court to extend fact discovery because of the number of
depositions that remain to be taken and Plaintiffs’ failure to produce discovery
requested.
After considering this motion as well as other discovery motions filed by the
parties, the Court believes that all parties have been equally complicit in discovery
delays and gamesmanship. Another motion is pending. Many requests have been
redundant, irrelevant and unnecessary. Documents have been dumped on the
opponent. Counsel have failed to cooperate with a level of civility the Court expects of
practitioners. Many cases – far more complicated than this – are never brought to the
Court with discovery disputes of this magnitude.
A settlement conference is scheduled for May 3, 2018. If the case does not
settle, the Court will discuss outstanding discovery and decide if the discovery deadline
should be extended. Until then, discovery should continue.
8

III.

CONCLUSION
For the foregoing reasons, the Court:
1. GRANTS IN PART HPES’s request that Sofer, Weiss and Newman be

compelled to produce documents responsive to subpoena requests;
2. GRANTS HPES’s request that Plaintiffs’ use of Mr. Shaposhnik’s hard drive
should be limited to only those files they have identified as relevant;
3. DENIES HPES’s request that Plaintiffs be compelled to respond to its
discovery request; and
4. HOLDS IN ABEYANCE HPES’s request that the Court extend fact discovery.
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: April 25, 2018

9