Alexander Interactive, Inc. v. Adorama, Inc. et al

Filing 75

MEMORANDUM AND ORDER granting in part and denying in part 46 Motion to Compel; granting in part and denying in part 48 Motion to Compel: For the foregoing reasons, the plaintiffs' motion to compel (Docket nos. 46 and 48) is granted in part a nd denied in part. The defendants are directed, as soon as practicable, to make available for review by a third party retained by the plaintiffs the Adorama source code, as well as the commit log for Adorama's.Net files. This review will take pl ace at Adorama's headquarters. In addition, the parties are directed to meet and confer, in person, within one week of the date of this order, to discuss the duration of the depositions of Mr. Braun and Mr. Roth. Magento is directed to produce t o the plaintiffs, within one week of the date of this order, performance reviews of Mr. Korotun to the extent that they relate to work performed under the Magento Agreement, and to identify the relevant version of the Zend Framework. (Signed by Magistrate Judge James C. Francis on 12/4/2013) Copies Mailed By Chambers. (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
ALEXANDER INTERACTIVE, INC.,
: 12 Civ. 6608 (PKC) (JCF)
ALEXANDER SCHMELKIN, and JOSH
:
LEVINE,
:
MEMORANDUM
:
AND ORDER
Plaintiffs,
:
:
- against :
:
ADORAMA, INC., ADORAMA ENTERPRISES :
LLC, EUGENE MENDLOWITS, and MENDEL :
MENDLOWITS,
:
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
MENDEL MENDLOWITS, ADORAMA
:
ENTERPRISES LLC, ADORAMA, INC., and:
EUGENE MENDLOWITS,
:
:
Counter Claimants, :
:
- against :
:
ALEXANDER INTERACTIVE, INC, JOSH
:
LEVINE, and ALEXANDER SCHMELKIN,
:
:
Counter Defendants. :
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
The

plaintiffs,

Alexander

Interactive,

Inc.,

Alexander

Schmelkin, and Josh Levine (collectively, “Alexander Interactive”)
have filed an omnibus discovery motion seeking (1) to compel
production of documents from the defendants, Adorama, Inc., Adorama
Enterprises,
(collectively,

LLC,

Eugene

“Adorama”)

Mendlowits,
and

from

and

Mendel

non-party

Mendlowits

Magento,

Inc.

(“Magento”); (2) for in camera review of all of the documents on
Magento’s privilege log; (3) to extend the duration of certain
depositions, some of which have already been taken; (4) to extend

1

discovery deadlines; and (5) for sanctions.1

The motion is granted

in part and denied in part.
Background2
The plaintiffs allege that retailer Adorama retained Alexander
Interactive, a web design and engineering firm, in connection with
re-engineering Adorama’s website, which was to run on a Magento ecommerce platform. (Second Amended Complaint (“2d Am. Compl.”), ¶¶
9-10, 15, 19). Alexander Interactive performed preliminary work on
the redesign project pursuant to the Master Services Agreement (the
“Adorama Agreement”). (Plaintiffs’ Motion (I) to Compel Production
of Documents (II) to Re-Produce Witnesses and Extend Deposition
Durations (III) for In Camera Inspection of Alleged Privileged
Documents (IV) to Extend Fact Discovery Deadline and (V) for
Sanctions under FRCP 37(a)(5)(A) (“Pl. Memo.”) at 3; 2d Am. Compl.,
¶¶ 15-16; Schedule A dated June 2, 2010, attached as Exh. B to 2d
Am. Compl., § 2). The parties later amended the Adorama Agreement,
expanding Alexander Interactive’s scope of work for the project and
requiring additional payments from Adorama.

(Pl. Memo. at 4;

Schedule B dated Dec. 21, 2010, attached as Exh. C to 2d Am.
Compl., § 6 & App. C; Escrow Agreement dated Dec. 21, 2010,

1

The plaintiffs withdrew, without prejudice, the motion
insofar as it sought relief against non-party Samsung Electronics.
(Notice of Plaintiff’s Withdrawal, Without Prejudice, of Motion to
Compel Production of Documents from Samsung Electronics dated Oct.
24, 2013).
2

This recitation of facts is taken from the allegations in
the operative complaint and counterclaims, as well as the parties’
submissions in connection with this motion, and includes only those
allegations that are relevant to the disputes presented here.
2

attached as Exh. D to 2d Am. Compl.).

During the course of its

work, Alexander Interactive executed a Custom Services Agreement
with Magento (the “Magento Agreement”), by which Magento would
provide consulting and other services, including coding assistance
and review.

(2d Am. Compl., ¶¶ 20, 24; Magento Custom Services

Agreement dated Nov. 10, 2010, attached as Exh. E to 2d Am. Compl.;
Pl. Memo. at 9).
Alexander Interactive asserts that Magento employee Vitaliy
Korotun performed the work contemplated in the Magento Agreement,
“programming the architectural interface (i.e. the foundation) for
the Adorama website.”

(Pl. Memo. at 9).

Alexander Interactive

developed the “Architectural Documents,” which “comprised the
Front-end and Back-end [] of the proposed new Adorama website,” and
then began writing code.

(Certification of Alex Schmelkin dated

Oct. 15, 2013 (“Schmelkin Cert.”), attached as Exh. A to Pl. Memo.,
¶¶ 7-8 & nn.1-6).
The relationship degenerated from there.

The plaintiffs

contend that Adorama repeatedly requested changes to the site that
were outside the agreed-upon scope of work, failed to pay incurred
charges, and refused to perform user acceptance testing on the
“Code

Deliverables”

delivered.

that

Alexander

Interactive

designed

and

(Schmelkin Cert., ¶¶ 9-11; 2d Am. Compl., ¶¶ 31-35).

For its part, Adorama asserts that Alexander Interactive mismanaged
the project, failed to meet deadlines, and delivered shoddy work
that had not been quality-tested.

(Declaration of Glen Holman

dated October 28, 2013 (“Holman Decl.”), ¶ 10; Answer, Affirmative
3

Defenses and Counterclaims (“Answer”), ¶¶ 213, 215, 217-20, 228,
230-34, 253-58). In March 2012, Alexander Interactive sent Adorama
a

termination

notice.

(2d

Am.

Compl.,

¶¶

37-39;

Letter

of

Alexander Schmelkin dated March 13, 2012, attached as Exh. G to 2d
Am. Compl.).

In order to stave off termination of the contract,

the parties agreed that Magento would audit Alexander Interactive’s
work.

(Holman Decl., ¶ 11).

The audit found significant problems

with the work performed, which Alexander Interactive blames, in
part, on code written by Mr. Korotun.

(Pl. Memo. at 2).

Ultimately, Adorama launched a revamped website and solicted
Magento to perform certain services originally covered by the
Adorama Agreement.
10).

(2d Am. Compl., ¶¶ 48, 60; Pl. Memo. at

5, 9-

Alexander Interactive alleges that Adorama “stole the front-

end and back-end of the . . . [s]ite developed by [Alexander
Interactive],” and infringed its intellectual property in various
other ways.

(Pl. Memo. at 5; 2d Am. Compl., ¶¶ 44-57, 61-65).

Discussion
A.

Meet and Confer Obligations

The defendants contend that there was no attempt to meet and
confer to resolve this dispute.

(Defendants’ Memorandum of Law in

Opposition to Plaintiffs’ (I) Motion to Compel Production of
Documents, (II) to Re-Produce Witnesses and Extend Depositions,
(III) to Extend Fact Discovery Deadline and (IV) for Sanctions
under FRCP 37(a)(5)(A) (“Def. Memo.”) at 2, 15-19).
When a party moves for an order compelling disclosure or
discovery, Rule 37(a)(1) of the Federal Rules of Civil Procedure
4

requires that the motion “include a certification that the movant
has in good faith conferred or attempted to confer with the person
or party failing to make disclosure or discovery in an effort to
obtain it without court action.” See Debellis v. Bize, No. 11 Civ.
7113, 2013 WL 935764, at *1 (S.D.N.Y. March 11, 2013).

The

certification must
set forth . . . essential facts sufficient to enable the
court to pass a preliminary judgment on the adequacy and
sincerity of the good faith conferment between the
parties[,] such as the names of the parties who conferred
or attempted to confer, the manner by which they
communicated, the dispute at issue, as well as the dates,
times, and results of their discussions, if any.
AIU Insurance Co. v. TIG Insurance Co., No. 07 Civ. 7052, 2008 WL
4067437, at *4 (S.D.N.Y. Aug. 28, 2008) (alterations in original)
(internal quotation marks omitted).

Here, the certification is

deficient, merely stating:
The Plaintiffs hereby certify, pursuant to FRCP 26(c)(1)
[sic] that they, on the one hand, and the Defendants,
Magento and Samsung, on the other hand, respectively
[sic], have engaged in good faith efforts to resolve
these discovery issues via a series of meetings and
conferences in connection therewith in an effort to
resolve these discovery disputes without Court Action.
(Pl. Memo. at 17).
Nevertheless, Rule 37 is satisfied as long as the parties have
in fact met and conferred, even if they fail to submit a proper
certification.

See Care Environmental Corp. v. M2 Technologies

Inc., No. 05 CV 1600, 2006 WL 1517742, at *3 (E.D.N.Y. May 30,
2006) (citing Matsushita Electronic Corp. of America v. 212 Copiers
Corp., No. 93 Civ. 3243, 1996 WL 87245, at *1 (S.D.N.Y. Feb. 29,
1996)) (affirming order compelling discovery where plaintiff had
5

met and conferred with defendant but did not submit certification
to that effect).

The parties comply with the rule’s obligations

when they
meet, in person or by telephone, and make a genuine
effort to resolve the dispute by determining . . . what
the requesting party is actually seeking; what the
discovering party is reasonably capable of producing that
is responsive to the request; and what specific genuine
issues, if any, cannot be resolved without judicial
intervention.
AIU Insurance Co., 2008 WL 4067437, at *3 (alteration in original)
(quoting Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., No.
96 Civ. 7590, 1998 WL 67672, at *3 (S.D.N.Y. Feb. 18, 1998)).
live exchange of ideas and opinions is required.”

“A

Prescient

Partners, 1998 WL 67672, at *2 (internal quotation marks omitted).
From the materials submitted here, it is clear that the parties did
not meet and confer in good faith.
To be sure, the parties exchanged numerous letters and e-mails
regarding discovery issues.

The problem is that the plaintiffs’

communications do not show a willingness to compromise or find
solutions. For example, in an e-mail dated September 20, 2013, the
plaintiffs demanded production of the “[f]ull source code of
Adorama’s present site,” among other materials.

(E-mail of Denise

L. Savage dated Sept. 20, 2013, attached as Exh. C to Declaration
of Matthew Sheppe dated Oct. 28, 2013 (“Sheppe Decl.”)).

The

defendants pointed out, repeatedly, that the parties had agreed
that the plaintiffs would hire a third party to review the source
code at Adorama’s headquarters and had memorialized that agreement
in a joint letter to the Honorable P. Kevin Castel, U.S.D.J., in
6

May 2013.

(Letter of Daniel J. Brown dated Sept. 25, 2013,

attached as Exh. E to Sheppe Decl., at 2; E-mail of Daniel J. Brown
dated Oct. 3, 2013, attached as Exh. F to Sheppe Decl., at 2;
Letter of Daniel J. Brown dated Oct. 11, 2013, attached as Exh. J
to Sheppe Decl., at 1; Letter of Daniel J. Brown dated May 7, 2013
(“May 7 Joint Letter”), attached as Exh. A to Sheppe Decl., at 7).
Rather than addressing this agreement and explaining why they
should no longer be bound by it, the plaintiffs’ responses simply
ignore its existence, demand production of the source code, and
threaten to file a motion to compel.3

(E-mail of Denise L. Savage

dated Oct. 4, 2013 (“Savage 10/4/13 E-mail”), attached as Exh. G to
Sheppe Decl., at 1-2; E-mails of Denise L. Savage dated Oct. 10,
2013 (“Savage 10/10/13 E-mails”), attached as Exh. I to Sheppe
Decl.).

The plaintiffs followed a similar strategy with regard to

the other documents at issue here, refusing to engage in a “live
exchange of ideas and opinions,” Prescient Partners, 1996 WL 67672,

3

Plaintiffs’ counsel did discuss the agreement during the
deposition of one of Adorama’s witnesses, but still failed to
explain why the agreement had become unacceptable to her client,
merely stating that she had “change[d her] mind.” (Excerpts from
Transcript of Deposition of Chaim Klar dated Oct. 30, 2013,
attached as Exh. 11 to Plaintiffs’ Reply to Defendants’ and
Magento, Inc.’s Respective Objections and in Further Support of
Plaintiffs’ Motion (I) to Compel Production of Documents (II) to
Re-Produce Witnesses and Extend Deposition Durations (III) for In
Camera Inspection of Alleged Privileged Documents (IV) to Extend
Fact Discovery Deadline and (V) for Sanctions under FRCP
37(a)(5)(A) (“Reply”), at 185-86).
Moreover, although the
plaintiffs assert that disputed document requests were discussed at
certain other depositions (Reply at 2), they fail to present any
information about the conduct of the discussions, so it is
impossible to determine whether they were approached with any
greater
flexibility
than
is
evidenced
in
the
written
communications.
7

at *2, with the defendants to resolve the disputes (Savage 10/4/13
E-mail; Savage 10/10/13 E-mails).

That is not conferring in good

faith.
While failure to meet and confer in good faith is sufficient
reason to deny a motion to compel, courts have recognized that the
merits of a discovery motion may be addressed “where the meet-andconfer would have been futile.”

Gibbons v. Smith, No. 01 Civ.

1224, 2010 WL 582354, at *2 (S.D.N.Y. Feb. 11, 2010); see also
Prescient Partners, 1998 WL 67672, at *3 (collecting cases). While
this is a close case, the papers submitted with this motion
indicate that both sides have dug in -- indeed, the defendants now
seem to take the (untenable) position that the plaintiff is not
entitled to the source code at all, having titled one section in
their opposition “Plaintiffs Are Not Entitled to Adorama’s Source
Code.”

(Def. Memo. at 8).

Ordering the parties to meet and confer

is unlikely to resolve these disputes.

See Time Inc. v. Simpson,

No. 02 Civ. 4917, 2002 WL 31844914, at *2 (S.D.N.Y. Dec. 18, 2002)
(“[Meet and confer] requirements are designed to promote efficiency
in litigation, and that goal would not be advanced by further delay
in resolving these issues on the merits.”).
B.

Motion to Compel Adorama to Produce Documents

Alexander Interactive seeks four categories of documents: (1)
the aforementioned source code; (2) configuration files -- that is,
“files

setting

forth

initial

settings,

server

processes

and

operating system settings” (Def. Memo. at 11) -- for Adorama’s
AS400

System,

which

“contains

all
8

of

Adorama’s

accounting,

financial, inventory control, [and] warehouse management . . .
information” (Def. Memo. at 11); (3) configuration files for
Adorama’s Endeca database and search engine, which “interact with
the website platform to provide [an] end user [who has searched for
a product on the website] with the appropriate search results”
(Def. Memo. at 12); and (4) “commit logs” for Adorama’s website,
which purportedly will show “when, by whom, and exactly what
changes were made to [the] website source code” (Pl. Memo. at 6).
1.

Source Code

To the extent that Adorama claims that the source code is
irrelevant (Def. Memo. at 8-10), it is incorrect.

“Although not

unlimited, relevance, for purposes of discovery, is an extremely
broad concept.”

Chen-Oster v. Goldman, Sachs & Co., __ F.R.D. __,

2013 WL 5629831, at *2 (S.D.N.Y. 2013) (internal quotation marks
omitted).

Here, Alexander Interactive has alleged that Adorama

copied the source code that Alexander Interactive created.

The

relevance of the source code is, therefore, obvious, and Adorama
has not “justif[ied] curtailing [its] discovery.”

Id.

As noted above, the parties earlier agreed that Alexander
Interactive would hire a third party to review the source code at
Adorama’s

headquarters.

(May

7

Joint

Letter

at

7).

This

reasonable compromise was made after the parties had met and
conferred. (Sheppe Decl., ¶¶ 2-3). Although Alexander Interactive
did not explain, prior to filing this motion, why that agreement is
no longer acceptable, it now contends that it “retained an expert
witness [in October] and ha[s] been advised by this witness of his
9

needs to engage in an analysis of all of the related source code
side by side with [the] data provided by [Alexander Interactive],”
that the expert has “notified counsel that his wife has been
diagnosed

with

a

very

serious

form

of

cancer

and

[he]

will

[therefore] require working from his home as often as possible,”
and that it is too late to retain a different expert.
6).

(Reply at 5-

There is no allegation of an intrinsic obstacle to analyzing

the Adorama source code along with the Alexander Interactive source
code at Adorama’s headquarters.

As I understand it, the snag is

that the expert that the plaintiffs have hired will have difficulty
performing the review at the headquarters.
The plaintiffs agreed at the beginning of May 2013 that a
third party of Alexander Interactive’s choosing would evaluate the
source code at Adorama’s offices and identify relevant sections
that should be reproduced for use in this litigation. Difficulties
attendant on the fact that Alexander Interactive did not retain an
expert until months later is not a reason to scuttle the parties’
agreement. Moreover, there is no representation that such a review
is impossible or even impracticable. The plaintiffs have presented
no evidence as to how much time this review and identification will
take, and so there is no basis to find that it will interfere with
the expert’s (understandable) desire to “work[] from his home as
often as possible.”

(Reply at 5).

In short, the plaintiffs and

defendants are directed to abide by the agreement memorialized in
the May 7 Joint Letter regarding Adorama’s source code.

To the

extent that Alexander Interactive seeks other relief as to that
10

discovery, the motion is denied.4
2.

AS400 Configuration Files

The party seeking discovery has the burden of demonstrating
its relevance.
*2.

Chen-Oster, __ F.R.D. at __, 2013 WL 5629831, at

Alexander Interactive has not carried this burden.

Rather,

its motion propounds generalities about the necessity of production
of “digital data,” lumping the AS400 files together with the
Adorama source code discussed above.

(Pl. Memo. at 7).

However,

the defendants point out that Alexander Interactive never “provided
development/coding work for the AS400,” which “predate[s] Adorama’s
contractual relationship with [Alexander Interactive].”

(Holman

Decl., ¶ 22). Adorama did provide Alexander Interactive with feeds
containing

information

about

Adorama’s

products,

but,

as

the

defendants indicate, there is no need for Adorama to produce these
because Alexander Interactive already has possession of them.
(Holman Decl., ¶ 23).
The plaintiffs do not address these contentions; indeed, they
expressly disclaim responsibility for rebutting them, citing my 10page limit for reply briefs.5

(Reply at 3).

Given that the

plaintiffs’ demonstration of relevance in their opening brief was
deficient and that the plaintiff did not seek permission to file an

4

In their Reply, the plaintiffs include a disquisition on
judicial estoppel and the reasons it does not apply here. (Reply
at 4). My decision is not based on such a doctrine, but, rather,
on the parties’ reasonable prior agreement on this issue.
5

Directing the Court to “review the [] Second Amended
Complaint and . . . Master Services Agreement” (Reply at 3) is not
helpful.
11

oversized reply, this is no excuse.

The plaintiffs’ motion to

compel is denied as to the AS400 configuration files.
3.

Endeca Configuration Files

The plaintiffs’ argument regarding the Endeca Configuration
files suffers from the same defects discussed above: there is no
serious attempt to explain how these files are relevant.
defendants

note

that

“none

of

the

deliverables

And the

[Alexander

Interactive] was to have provided under the [Adorama Agreement]
concerned the config[uration] files for the Endeca server.”
(Holman

Decl.,

¶¶

25-26).

It

therefore

appears

that

the

configuration files are not relevant to Alexander Interactive’s
claims.
4.

Commit Logs

Because the commit logs show details of changes made to source
code, they are relevant.

Adorama asserts that it “does not

maintain commit logs for the AS400 system, the Endeca server or any
javascript portions of its source code,” but does “for its .Net
source code.” (Holman Decl., ¶¶ 28-29). The defendants shall make
these commit logs available to the plaintiffs’ expert.
B.

Motion to Compel Magento to Produce Documents

Alexander Interactive served a subpoena duces tecum on nonparty Magneto, which has consented to the jurisdiction of this
Court for the limited purpose of evaluating its compliance with the
subpoena.

(Letter of Patrick J. Sweeney dated May 30, 2013,

attached as Exh. 4 to Declaration of Patrick J. Sweeney dated Oct.
28,

2013

(“Sweeney

Decl.”),

at
12

1).

Magento

has

produced

a

significant number of documents pursuant to the subpoena.

(Letter

of Kyong Mi-Kim dated May 9, 2013 (“Mi-Kim 5/9/13 Ltr.”), attached
as Exh. 2 to Sweeney Decl., at 1). Alexander Interactive now seeks
to compel production of seven categories of documents from Magento:
(1) “Magento’s certification results for [Alexander Interactive]
Magento’s Code Review Guidleines”; (2) Magento’s coding guidelines
and standards; (3) performance reviews for Mr. Korotun; (4) Mr.
Korotun’s

schedule

for

“the

next

two

months”

or,

in

the

alternative, Mr. Korotun’s address; (5) Mr. Korotun’s time logs;
(6) document retention policies for Magento and eBay, which owns
Magento; and (7) documents from Mr. Korotun’s computer relating to
the Adorama project.6
1.

(Pl. Memo. at 12).

Certification Results

Magento informed Alexander Interactive over five months before
this motion was filed that it had searched for such results and
could not locate any.

(Mi-Kim 5/9/13 Ltr. at 2).

This request is

frivolous and the motion to compel is denied as to these (nonexistent) documents.
2.

Coding Guidelines and Standards

Magento has informed the plaintiffs that it adheres to the
Zend Framework Coding Standard for PHP and that these guidelines
are publicly available on the Internet.
6

(Nonparty Magento, Inc.’s

I note that, again, the plaintiffs have failed to make a
serious attempt to resolve this dispute without court intervention.
Indeed, when the parties attempted to do so in a telephone
conference regarding the subpoena, plaintiffs’ counsel admitted
that she had not reviewed the subpoena before the call and
therefore could not state whether certain requested documents were
within its scope. (Sweeney Decl., ¶ 14).
13

Memorandum of Law in Opposition to Plaintiffs’ Motion (I) to Compel
Production of Documents (II) to Re-Produce Witnesses and Extend
Deposition Durations (III) for In Camera Inspection of Alleged
Privileged Documents (IV) to Extend Fact Discovery Deadline and (V)
for Sanctions under FRCP 37(a)(5)(A) (“Magento Memo.”) at 10).
Alexander Interactive complains that Magento has not informed it of
the version that was in force at the time that the relevant work
was completed.

(Pl. Memo. at 12).

I will not order Magento to produce these publicly available
documents.

I

will

however,

direct

it

to

inform

Alexander

Interactive of the relevant version of the Zend Framework.
3.

Performance Reviews

Magento asserts that the performance reviews are irrelevant
and outside the scope of the subpoena.

(Magento Memo. at 10-11).

Alexander Interactive asserts that Mr. Korotun “was moved from his
position

as

a

developer/architect

working

with

clients

to

performing research for Magento” (Pl. Memo. at 12) and argues that
“if Mr. Korotun’s title and position at Magento were impacted by
his performance in connection with Magento’s work for [Alexander
Interactive], then [this] request is ‘related’ to the [p]laintiffs
and . . . falls under request Nos. 1, 2, 4, 5, and 8” of the
subpoena (Reply at 8).
Request no. 1 seeks documents “concerning and relating to any
and all services rendered by any and all [p]laintiffs to any and
all [d]efendants.”
Inc.

(A

Wholly

(Plaintiffs’ Subpoena Duces Tecum to Magento,
Owned

Subsidiary
14

of

eBay,

Inc.)

(“Magento

Subpoena”),

attached

as

Exh.

1

to

Sweeney

Decl.,

at

8-9).

Performance reviews of Mr. Korotun that relate to his work on the
relevant project would be encompassed by this request.

The

documents are also relevant, as the defendants claim that work
delivered by Alexander Interactive, some of which was performed by
Mr. Korotun pursuant to the Magento Agreement, was substandard.
(Answer, ¶¶ 215, 218-220, 228, 282-93).
performance

reviews

to

the

extent

Magento shall produce the

that

they

relate

to

work

performed under the Magento Agreement.7
4.

Mr. Korotun’s Schedule

The request for Mr. Korotun’s schedule is outside the scope of
the subpoena.

However, Magento has voluntarily informed the

plaintiffs that Mr. Korotun has no plans to be in the United States
during the relevant time period.

(Magento Memo. at 11).

As a

matter of professional courtesy, Magento shall provide Alexander
Interactive with Mr. Korotun’s address in Ukraine.
5.

Mr. Korotun’s Time Logs

Magento has already produced Mr. Korotun’s time records, and
the plaintiffs have been aware of that since May 2013.
5/9/13 Ltr. at 3).

(Mi-Kim

The plaintiffs’ inclusion of this request in

this motion is frivolous.

7

At a conference on May 23, 2013, Judge Castel denied the
defendants’ request for all personnel files and performance reviews
for all employees of Alexander Interactive that worked on the
Adorama project, calling it a “fishing expedition.” (Transcript of
Conference dated May 23, 2013, excerpts attached as Exh. 3 to
Sweeney Decl., at 42). However, this request for one employee’s
performance reviews relating to the specific job at issue is
sufficiently targeted.
15

6.

Document Retention Policies

The request for document retention policies seeks documents
that are outside the scope of the subpoena. Moreover, the policies
are not relevant to any claim or defense in this action.
Clearly, Alexander Interactive seeks these policies because
Magento has stated that documents were deleted from Mr. Korotun’s
computer in the normal course of business.
3).

(Mi-Kim 5/9/13 Ltr. at

The plaintiffs have presented nothing that would support an

inference that potentially relevant evidence has been spoliated.
7.

Documents from Mr. Korotun’s Computer

As noted above, documents from Mr. Korotun’s computer were
deleted in the normal course of business. The plaintiffs have been
aware of this fact since April 2013. (Letter of Patrick J. Sweeney
dated April 26, 2013, attached to Mi-Kim 5/9/13 Ltr.).
C.

Request for In Camera Review

Alexander Interactive asks that I review, in camera, all 500
documents included on Magento’s privilege log.
14).

(Pl. Memo. at 13-

In response to this request, Magento served an amended

privilege log, including more detailed descriptions than were
included on its original log.
Magento’s privilege log includes the date of each document,
its author and recipients, its subject, and a description of the
type of document (Privilege Log, attached as Exh. 7 to Sweeney
Decl.), and therefore complies with the local rules for this
District, see Local Rules of the United States District Courts for
the Southern and Eastern Districts of New York, Local Civil Rule
16

26.2(a)(2)(A), (b) (requiring a privilege log to include “(i) the
type of document . . . ; (ii) the general subject matter of the
document; (iii) the date of the document; and (iv) the author of
the document, the addressees of the document, and any other
recipients, and, where not apparent, the relationship of the
author, addressees, and recipients to each other”).

Alexander

Interactive does not appear to challenge the sufficiency of the
log; rather, it asks that I review all of the documents to ensure
that they are, indeed, protected from disclosure.
I decline the invitation.

“Discovery in our adversarial

system is based on a good faith response to demands for production
by an attorney constrained by the Federal Rules and by ethical
obligations.”

Rozell v. Ross-Holst, No. 05 Civ. 2936, 2006 WL

163143, at *4 (S.D.N.Y. Jan. 20, 2006).

In light of this, “‘[i]n

camera inspection is the exception rather than the rule.’”

Davis

v. City of New York, No. 10 Civ. 699, 2012 WL 612794, at *6 n.9
(S.D.N.Y. Feb. 27, 2012) (quoting American Steamship Owners Mutual
Protection and Indemnity Association v. Alcoa Steamship Co., No. 04
Civ. 4309, 2006 WL 278131, at *2 (S.D.N.Y. Feb. 2, 2006)).

Here,

the plaintiffs “have provided no basis to believe that [Magento’s]
counsel have not honestly and accurately performed the review
function in this case.”
D.

Rozell, 2006 WL 163143, at *4.

Depositions

The plaintiffs seek an additional day of testimony from
Magento witnesses Susie Sedlacek and Udi Shamay and from Adorama
witness Glen Holman.

(Pl. Memo. at 15).
17

In addition, Alexander

Interactive seeks to extend the upcoming depositions of Eli Roth
and Eliazer Braun, who are programmers at Adorama, and of Mr.
Korotun, to two seven-hour days each.
1.

(Pl. Memo. at 16).

Magento Witnesses
a.

Ms. Sedlacek and Mr. Shamay

The request to redepose Ms. Sedlacek and Mr. Shamay is
frivolous. These witnesses appeared for their depositions pursuant
to a subpoena issued by the U.S. District Court for the Northern
District of California.

(Magento Memo. at 13).

not have jurisdiction over the subpoena.

This Court does

Fed. R. Civ. P. 45(c)(3)

& advisory committee’s note to 1991 amendments (authority to
enforce, modify, or quash subpoena rests with issuing court).
b.

Mr. Korotun

The request to expand the deposition of Mr. Korotun is
premature.

Mr. Korotun, who resides in Ukraine, has not been

served with a subpoena, and compelling him to testify might well be
a difficult process, requiring the use of procedures of the Hague
Convention on the Service Abroad of Judicial and Extra-Judicial
Documents in Civil or Commercial Matters.8

If and when Mr. Korotun

is served, this request may be renewed.
8

Magento asserts that, although Ukraine has acceded to the
Hague Convention, it has “opted out of civil discovery provisions.”
(Magento Memo. at 9 n.4). I express no opinion on the accuracy of
the statement, but note that the Department of State indicates that
letters of request for the taking of evidence from citizens of
Ukraine may be transmitted to Ukraine’s Ministry of Justice without
processing through diplomatic channels.
Ukraine Judicial
Assistance, Travel.State.Gov, A Service of the Department of
Consular Affairs, U.S. Department of State, available at
http://travel.state.gov/law/judicial/judicial_3027.html
(last
visited Nov. 27, 2013).
18

3.

Adorama Witnesses
a.

Mr. Holman

The heart of Alexander Interactive’s argument that it should
be allowed to depose Mr. Holman again is that Adorama failed to
timely produce the digital data discussed above. (Pl. Memo. at 1416).

However, that failure can be laid at the feet of the

plaintiffs, who failed to abide by their agreement to retain a
third party to review the data at Adorama’s headquarters.
not,

then,

a

reason

to

extend

the

duration

of

Mr.

This is
Holman’s

deposition.
Moreover, as Adorama points out, testimony regarding the
documents I have ordered to be made available can be elicited
during Mr. Braun’s deposition.
b.

(Def. Memo. at 21).

Mr. Braun and Mr. Roth

There is insufficient information in the papers for me to
determine

whether

fairness

requires

additional

depositions of Mr. Braun and Mr. Roth.

time

for

the

I therefore order the

parties to meet and confer, in person, on this issue, keeping in
mind two facts: (1) Adorama has offered that Mr. Braun will testify
as to the Adorama source code (Def. Memo. at 21) and (2) there is
evidence that depositions taken by Alexander Interactive have been
conducted in an inefficient manner (Def. Memo. at 13-14).

The

parties should work together to develop a protocol that will allow
the depositions to proceed quickly and efficiently.
E.

Extension of Discovery Deadlines

Because Alexander Interactive will be accessing the Adorama
19

code -- as well as certain other discovery, which I have ordered
produced in this Order -- and as Adorama acknowledges that the
plaintiffs must have an opportunity to take deposition testimony in
light of this discovery, the discovery deadlines are extended as
requested.

Fact discovery will close on December 31, 2013; expert

discovery on April 30, 2013.
F.

Sanctions

Rule 37 prohibits an award of fees and costs if a discovery
motion is filed before the moving party has attempted to meet and
confer

in

good

intervention.

faith

to

resolve

the

dispute

without

court

Fed. R. Civ. P. 37(a)(5)(A)(i); Gibbons, 2010 WL

582354, at *2; Time Inc., 2002 WL 31844914, at *2.

Thus, even if

the plaintiffs had succeeded entirely in their motion, which they
have not, they would not be entitled to payment of expenses.
Instead, the plaintiffs’ motion has been granted in part and
denied in part, which allows me discretion to apportion reasonable
expenses.

Fed. R. Civ. P. 37(a)(5)(C).

Obviously, plaintiffs’

counsel’s failure to meet and confer in good faith shows a lack of
regard for the Federal Rules and for the Court’s time.

That

disregard is exacerbated by the motion itself, which includes a
number

of

frivolous

demands.

Rather

than

apportion

to

the

plaintiffs any of the fees and costs incurred by the defendants or
by Magento in connection with this motion, however, I will caution
both parties that any future discovery motion in this case must
strictly satisfy the requirements of the Federal Rules of Civil
Procedure, including Rule 11 and Rule 37(a)(1).
20

Failure to comply

will

subj ect

the

motion

to

summary

denial

and

imposition

of

sanctions.
Conclusion
For the foregoing reasons,

the plaintiffs' motion to compel

(Docket nos. 46 and 48) is granted in part and denied in part.

The

defendants are directed, as soon as practicable, to make available
for review by a third party retained by the plaintiffs the Adorama
source code, as well as the commit log for Adorama's .Net files.
This

review

will

take

place

at

Adorama's

headquarters.

In

addition, the parties are directed to meet and confer, in person,
within one week of the date of this order, to discuss the duration
of the depositions of Mr. Braun and Mr. Roth.

Magento is directed

to produce to the plaintiffs, within one week of the date of this
order, performance reviews of Mr. Korotun to the extent that they
relate

to

work

performed under

the

Magento Agreement,

identify the relevant version of the Zend Framework.

SO ORDERED.

JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Dated:

New York, New York
December 4, 2013

21

and

to

Copies mailed this date:
Denise L. Savage, Esq.
Savage & Associates, P.C.
400 Blinn Road
Suite 1010
Croton-on Hudson, NY 10520
Kenneth P. Norwick, Esq.
Norwick, Schad & Goering
110 East 59th Street, 29th FIr
New York, NY 10022
Matthew H. Sheppe, Esq.
Eric J. Vardi, Esq.
Reiss Sheppe LLP
425 Madison Ave.
New York, NY 10017
Patrick J. Sweeney, Esq.
Holland & Knight LLP
31 West 52nd St.
New York, New York 10019

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