Point 4 Data Corporation et al v. Tri-State Surgical Supply And Equipment, LTD. et al

Filing 109

MEMORANDUM AND ORDER, SCHEDULING ORDER: re 104 Letter filed by Tri-State Surgical Supply And Equipment, LTD., 105 MOTION for Extension of Time to Complete Expert Disclosure filed by Dynamic Concepts, Inc., Point 4 Data Corporation, [10 3] Letter filed by Tri-State Surgical Supply And Equipment, LTD., 100 Letter filed by Dynamic Concepts, Inc., Point 4 Data Corporation. Currently pending before this Court is a letter from plaintiffs Point 4 Data Corporation and Dynamic Co ncepts, Inc. concerning two discovery disputes between the parties. The Court will hear oral argument on this application at 10:00 a.m. on December 9, 2011, in Courtroom 13C-S.. Ordered by Magistrate Judge Roanne L. Mann on 12/7/2011. (Maynard, Pat)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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POINT 4 DATA CORP., et al.,
MEMORANDUM
AND ORDER

Plaintiffs,
-against-

11-CV-726 (CBA)

TRI-STATE SURGICAL SUPPLY,
LTD., et al.,
Defendants.
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ROANNE L. MANN, UNITED STATES MAGISTRATE JUDGE:
Currently pending before this Court is a letter from plaintiffs Point 4 Data Corporation
and Dynamic Concepts, Inc. (collectively, “plaintiffs”) concerning two discovery disputes
between the parties. See Letter Requesting Court’s Assistance (Nov. 11, 2011) (“11/11/11 Pl.
Motion”), ECF Docket Entry (“DE”) #100. Specifically, plaintiffs (1) accuse defendant TriState Surgical Supplies & Equipment, Ltd. (“defendant”) of spoliation of evidence; and (2)
seek an order compelling defendant to produce additional financial records. See id.
DISCUSSION
I. SPOLIATION
Plaintiffs seek sanctions based on defendant’s alleged spoliation of a computer file (“the
Passport Log”) on defendant’s computer server; as originally produced by defendant, the
Passport Log contained no data predating February 25, 2010. See 11/11/11 Pl. Motion at 1.
However, after plaintiffs filed their motion, defendant’s employees located two misfiled backup
tapes containing a Passport Log file with entries from 1999 to 2009. See Letter Advisory re
Passport Log (Nov. 16, 2011), DE #104. Defendant served plaintiffs with a copy of the

printed Passport Log file and agreed to produce a native copy of that file. See id. As plaintiffs
do not dispute that they now have the “missing” Passport Log data, plaintiffs’ spoliation claim
is denied as moot.
II. DEFENDANT’S FINANCIAL RECORDS
Plaintiffs also seek “access to detailed revenue and expenses information” from
defendant, see 11/11/11 Pl. Motion at 3, in connection with plaintiffs’ claim that they are
entitled to recover “any profits of the violator that are attributable to the violation” of the
Digital Millennium Copyright Act. Id. (quoting 17 U.S.C. § 1203(c)(2)); see also Letter
Motion for Extension of Time (Nov. 28, 2011) (“Pl. Reply”) at 1-2, DE #105. Defendant
responds that plaintiffs are not entitled to disgorgement of profits under section 1203(c)(2)
because the profits of defendant, a medical supply company and a licensed user of plaintiffs’
software, are not “attributable” to defendant’s alleged circumvention of a security mechanism
in plaintiffs’ software. See Letter Response to Plaintiffs’ November 11 Letter Motion (Nov.
15, 2011) (“Def. Response”) at 2-3, DE #103.
The Court will hear oral argument on this application at 10:00 a.m. on December 9,
2011, in Courtroom 13C-S.
SO ORDERED.
Dated:

Brooklyn, New York
December 7, 2011

ROANNE L. MANN
UNITED STATES MAGISTRATE JUDGE

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