Bytemark, Inc. v. Xerox Corp. et al

Filing 129

MEMORANDUM AND ORDER denying with prejudice 115 Letter Motion to Compel; denying with prejudice 119 Letter Motion to Compel; denying as moot 125 Motion to Strike docket entry and document 118 Reply Memorandum of Law in Support of Motio n, filed by Xerox Corp., Conduent, Inc., Xerox Transport Solutions, Inc., New Jersey Transit Corp., ACS Transport Solutions, Inc. from the record; denying as moot 127 Letter Motion for Leave to File Document. For the foregoing reasons, the Court finds that the defendants and the plaintiff: (1) failed to comply with the Court's December 14, 2020 order; (2) failed to seek an enlargement of time as provided in the December 14, 2020 order; (3) failed to acknowledge the untime ly filing of their motions; (4) failed to provide any explanations for their untimely motions; and (5) waived any opportunity to have the Court consider the parties' reasons for untimeliness nunc pro tunc. Accordingly, the defendants' motion, Docket Entry No. 115, and the plaintiff's motion, Docket Entry No. 119, are denied, with prejudice. The plaintiff's motion, Docket Entry No. 125, and the defendants' letter-motion, Docket Entry No. 127, are moot. SO ORDERED. (Signed by Magistrate Judge Kevin Nathaniel Fox on 1/13/2021) (va)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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BYTEMARK, INC.,
:
Plaintiff,

:
MEMORANDUM AND ORDER

v.

:
17-CV-1803 (PGG) (KNF)

XEROX CORP., ACS TRANSPORT
:
SOLUTIONS, INC. XEROX TRANSPORT
SOLUTIONS, INC., CONDUENT INC.,
:
AND NEW JERSEY TRANSIT CORP.,
:
Defendants.
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KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE
By an order dated December 14, 2020, the Court denied the parties’ December 10, 2020
joint request for a pre-motion conference and directed that, “[o]n or before December 28, 2020,
any motions limited solely to the issues raised in the December 10, 2020 joint letter shall be
made. The Local Civil Rules of this court govern the timing of oppositions and replies,” noting
that the Court “will not entertain any requests to extend the number of pages or filing deadlines
absent a showing of extraordinary circumstances. COVID-19 related issues do not constitute
extraordinary circumstances.” Docket Entry No.110.
DEFENDANTS’ FILINGS
On December 28, 2020, a certificate of service was filed by the defendants’ counsel
Ashley N. Moore, stating that “on December 28, 2020, Defendants’ Memorandum of Law in
Support of Its [sic] Motion to Compel and Motion for Protective Order, and Exhibits A-F were
served via e-mail on counsel of record,” Docket Entry No. 111. On January 5, 2021, a certificate
of service was filed by Ashley N. Moore, stating that “[t]he undersigned certifies that
Defendants’ Memorandum of Law in Opposition to Bytemark’s Motion to Compel Document
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Production, and Exhibits A-H were served via e-mail on counsel of record,” Docket Entry No.
114. On January 6, 2021, a “Notice of Defendants’ Motion to Compel and Motion for Protective
Order,” dated January 6, 2021, was filed asserting that “upon the Declaration of Ashley N.
Moore, and the exhibits annexed thereto, the Memorandum of Law, dated December 28, 2020,”
the defendants “move this Court” for an order compelling the plaintiff
to identify its trade secrets with reasonable particularity either via a trade secret
disclosure or a response to Interrogatory No. 1. Until Bytemark makes this
identification, Defendants also seek a Protective Order preventing Bytemark from
pursuing the entirety of Defendants’ confidential information in an attempt to tailor
its trade secrets to fit what it finds there.
Docket Entry No. 115.
“Defendants’ Memorandum of Law in Support of Its [sic] Motion to Compel and Motion for
Protective Order,” Docket Entry No. 116, and “Declaration of Ashley N. Moore in Support of
Defendants’ Motion to Compel and Motion for Protective Order,” Docket Entry No. 117, both
dated December 28, 2020, were filed on January 6, 2021. “Defendants’ Reply in Support of Its
[sic] Motion to Compel and Motion for Protective Order,” Docket Entry No. 118, was dated and
filed on January 6, 2021. “Defendants’ Memorandum of Law in Opposition to Bytemark’s
Motion to Compel Document Production,” Docket Entry No. 122, dated January 4, 2021, was
filed on January 6, 2021. The “Declaration of Ashley N. Moore in Support of Defendants’
Memorandum of Law in Opposition to Bytemark’s Motion to Compel Document Production,”
Docket Entry No. 123, was dated and filed on January 6, 2021.
PLAINTIFF’S FILINGS
On December 28, 2020, a certificate of service by Anya Engel stating that “on December
28, 2020, Plaintiff’s Motion to Compel Document Production, Plaintiff’s Memorandum of Law
in Support of Motion to Compel Document Production, Exhibits A-G, and Declaration of Anya

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Engel were served via e-mail on counsel of record,” Docket Entry No. 112. On January 4, 2021,
a certificate of service was filed by Anya Engel, stating that “[t]he undersigned certifies that on
January 4, 2021, Plaintiff’s Response in Opposition to Defendants’ Motion to Compel and
Motion for Protective Order, Exhibits D-I, and Declaration of Anya Engel were served via e-mail
on counsel of record,” Docket Entry No. 113. On January 6, 2021, a “Notice of Plaintiff
Bytemark Inc.’s Motion to Compel Document Production,” dated December 28, 2020, was filed
asserting that “pursuant to the attached Memorandum of Law in Support of Plaintiff Bytemark
Inc.’s Motion to Compel Document Production, and accompanying exhibits A-G, Bytemark, Inc.
will move before the Honorable Paul G. Gardephe” for an order compelling the defendants “to
produce documents and information responsive to Plaintiff's First and Second Sets of Requests
for Production, including request numbers 38-40 and 60-62.” Docket Entry No. 119. The
plaintiff’s “Memorandum in Support of Motion to Compel Document Production,” Docket Entry
No. 120, and “Declaration of Anya Engel,” Docket Entry No. 120-8, both dated December 28,
2020, were filed on January 6, 2021. “Plaintiff’s Reply in Support of Its Motion to Compel
Document Production,” Docket Entry No. 121, was dated and filed on January 6, 2021.
“Plaintiff’s Response in Opposition to Defendants’ Motion to Compel and Motion for Protective
Order,” Docket Entry No. 124, and “Declaration of Anya Engel,” Docket Entry No. 124-7, were
both dated January 4, 2021, and filed on January 6, 2021.
PLAINTIFF’S MOTION TO STRIKE
On January 7, 2021, the plaintiff filed the “Notice of Plaintiff’s Motion to Strike Dkt.
#118,” Docket Entry No. 125, dated January 7, 2021. In “Plaintiff’s Memorandum of Law in
Support of Its Motion to Strike Dkt. #118,” Docket Entry No. 126, the plaintiff asserts it seeks to
strike the defendants’ reply “for exceeding the page limitation set by the Court” in its December

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14, 2020 order. By a letter-motion dated January 8, 2021, the defendants asserted that they
“inadvertently overlooked the Court’s Order limiting replies to 6 pages” and requested “that the
Court accept the attached 6 page Reply and disregard the 10 page Reply served on January 6
(Dkt. No. 118).” Docket Entry No. 127. By a letter dated January 8, 2021, the plaintiff
requested that the Court deny the defendants’ request because they “doubled the two-day
briefing period for their reply by filing a revised brief on January 8,” which “would mark the
second time this week that Defendants have filed a late brief.” Docket Entry No. 128. The
plaintiff asserted that “granting Defendants’ requests would only reward their repeated, flagrant
disregard of the Court’s Order and applicable rules and encourage Defendants’ belief that they
may act with impunity.”
LEGAL STANDARD
“Filing deadlines, like statutes of limitations, necessarily operate harshly and
arbitrarily with respect to individuals who fall just on the other side of them, but if
the concept of a filing deadline is to have any content, the deadline must be
enforced. ‘Any less rigid standard would risk encouraging a lax attitude toward
filing dates,’ United States v. Boyle, 469 U.S. [241,] 249 [105 S.Ct. 687, 691-692,
83 L.Ed.2d 622] [ (1985) ]. A filing deadline cannot be complied with, substantially
or otherwise, by filing late-even by one day.”
Houston v. Lack, 487 U.S. 266, 282, 108 S. Ct. 2379, 2388 (1988).

Local Civil Rule 5.2(a) of this court provides:
Parties serving and filing papers shall follow the instructions regarding Electronic
Case Filing (ECF) published on the website of each respective Court. A paper
served and filed by electronic means in accordance with such instructions is, for
purposes of Fed. R. Civ. P. 5, served and filed in compliance with the Local Civil
Rules of the Southern and Eastern Districts of New York.
“No certificate of service is required when a paper is served by filing it with the court’s
electronic-filing system.” Fed. R. Civ. P. 5(d)(1)(B). Electronic Case Filing Rules and
Instructions of this court provide:
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1.1 Except as expressly provided and in exceptional circumstances preventing a
party from filing electronically, all documents required to be filed with the Court
must be filed electronically.
***
3.1 Except as otherwise provided in section 4 herein, electronic filing of a document
in the ECF system consistent with these procedures, together with the transmission
of a Notice of Electronic Filing (NEF) from the Court, constitutes filing of the
document for all purposes of the Federal Rules of Civil Procedure, the Federal
Rules of Criminal Procedure, and the Local Rules of this Court and constitutes entry
of the document on the docket kept by the Clerk under Federal Rules of Civil
Procedure 58 and 79 and Federal Rules of Criminal Procedure 49 and 55.
***
9.1 In cases assigned to the ECF system, service is complete provided all parties
receive a Notice of Electronic Filing (NEF), which is sent automatically by email
from the Court (see the NEF for a list of who did/did not receive notice
electronically). Transmission of the NEF constitutes service upon all Filing and
Receiving Users who are listed as recipients of notice by electronic mail.
***
19.1 How is service accomplished for electronically filed documents? Filing and
Receiving Users who have appeared in the case will receive a Notice of Electronic
Filing (NEF) by e-mail whenever there is case activity. The NEF constitutes service
upon all Filing and Receiving Users.
***
19.3 Am I required to electronically file proof of service in an ECF case? Only two
circumstances require the electronic filing of proof of service in an ECF case: (a)
Proof of service for the case initiating document must be electronically filed on the
ECF system, and (b) Proof of service must be electronically filed any time a party
is served with a paper document.

APPLICATION OF LEGAL STANDARD
All new civil cases filed in this court after December 2, 2003, are ECF cases, including
this case, and they are subject to ECF Rules and Instructions. The Court’s December 14, 2020
order stated clearly and unambiguously: “On or before December 28, 2020, any motions limited
solely to the issues raised in the December 10, 2020 joint letter shall be made. The Local Civil
Rules of this court govern the timing of oppositions and replies.” No motion was made on
December 28, 2020, as directed by the Court’s December 14, 2020 order, since no “notice of
motion, supporting affidavits, and memoranda of law,” required by Local Civil Rule 6.1(a) of

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this court, were filed on December 28, 2020. The parties did not seek, at any time, an
enlargement of the December 28, 2020 deadline for making their motions and they did not assert,
at any time, that the December 14, 2020 order was unclear and ambiguous.
Instead of filing their motion on December 28, 2020, as directed by the Court’s
December 14, 2020 order, the defendants filed, on December 28, 2020, a “Certificate of Service”
by their attorney certifying that “on December 28, 2020, Defendants’ Memorandum of Law in
Support of Its [sic] Motion to Compel and Motion for Protective Order, and Exhibits A-F were
served via e-mail on counsel of record.” The Court’s December 14, 2020 order did not direct the
defendants to: (a) serve the defendants’ motion “via e-mail on counsel of record” on December
28, 2020; and (b) file a “Certificate of Service” of the defendants’ motion on December 28,
2020. The defendants’ serving “Defendants’ Memorandum of Law in Support of Its [sic]
Motion to Compel and Motion for Protective Order, and Exhibits A-F” “via e-mail on counsel of
record” was improper and contrary to this court’s ECF Rules and Instructions providing that the:
(a) “NEF constitutes service upon all Filing and Receiving Users,” ECF Section 19.1; (b) NEF
“is sent automatically by email from the Court,” ECF Section 9.1; and (c) “[t]ransmission of the
NEF constitutes service upon all Filing and Receiving Users who are listed as recipients of
notice by electronic mail,” ECF Section 9.1. Moreover, “electronic filing of a document in the
ECF system” and “the transmission of a Notice of Electronic Filing (NEF) from the Court,
constitutes filing of the document for all purposes of the Federal Rules of Civil Procedure, the
Federal Rules of Criminal Procedure, and the Local Rules of this Court,” ECF Section 3.1; thus,
filing of a “Certificate of Service” “via e-mail on counsel of record” does not constitute either
electronic filing of the motion or the transmission of an NEF from the court. The defendants’

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“Certificate of Service” was not required because it did not concern the case initiating document
or service of a paper document, as provided by ECF Section 19.3.
Even assuming that the defendants December 28, 2020 “Certificate of Service” was
proper and ordered to be filed by the Court, which it was not, it does not indicate that the “Notice
of Defendants’ Motion to Compel and Motion for Protective Order,” required by Local Civil
Rule 6.1(a), was served by the defendants’ counsel “via e-mail on counsel of record.” Indeed,
the defendants’ “Notice of Defendants’ Motion to Compel and Motion for Protective Order”
could not have been served on December 28, 2020, because it is dated January 6, 2021, the date
on which the defendants’ motion to compel was filed, more than one week after the deadline set
forth by the Court’s December 14, 2020 order. Additionally, the defendants’ December 28, 2020
“Certificate of Service” failed to certify that the “Declaration of Ashley N. Moore in Support of
Defendants’ Motion to Compel and Motion for Protective Order,” dated December 28, 2020, but
filed on January 6, 2021, was served by the defendants’ counsel “via e-mail on counsel of
record,” and the defendants did not provide any explanation for the failure.
Instead of filing its motion on December 28, 2020, as directed by the Court’s December
14, 2020 order, the plaintiff filed, on December 28, 2020, a “Certificate of Service” by Anya
Engel, without identifying Anya Engel as the plaintiff’s attorney. It was not until January 6,
2021, that Anya Engel appeared as the plaintiff’s attorney by filing the “Declaration of Anya
Engel.” The Court’s December 14, 2020 order did not direct the plaintiff to: (a) serve the
plaintiff’s motion “via e-mail on counsel of record” on December 28, 2020; and (b) file a
“Certificate of Service” of the plaintiff’s motion on December 28, 2020. Even assuming that the
plaintiff’s December 28, 2020 “Certificate of Service” was proper and ordered to be filed by the
Court, which it was not, it does not indicate that the December 28, 2020 “Notice of Plaintiff

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Bytemark Inc.’s Motion to Compel Document Production,” required by Local Civil Rule 6.1(a),
was served by the plaintiff “via e-mail on counsel of record.” As explained above and for the
same reasons for which the defendants’ filing of their “Certificate of Service” was improper and
contrary to the ECF Rules and Instructions, the plaintiff’s filing of its “Certificate of Service”
was improper and contrary to the ECF Rules and Instructions. The plaintiff’s filing of a
“Certificate of Service” “via e-mail on counsel of record” does not constitute either electronic
filing of the motion or the transmission of an NEF from the court. The plaintiff’s “Certificate of
Service” was not required because it did not concern the case initiating document or service of a
paper document, as provided by ECF Section 19.3.
The Court’s December 14, 2020 order also directed that “[t]he Local Civil Rules of this
court govern the timing of oppositions and replies,” which meant that oppositions were due on
January 4, 2021, and replies on January 7, 2021. Even assuming that the parties complied with
the December 28, 2020 deadline for their respective motions, which they did not, their respective
oppositions were not filed on January 4, 2021. On January 4, 2021, the plaintiff filed its
“Certificate of Service,” stating that “on January 4, 2021, Plaintiff’s Response in Opposition to
Defendants’ Motion to Compel and Motion for Protective Order, Exhibits D-I, and Declaration
of Anya Engel were served via e-mail on counsel of record.” The plaintiff’s opposition was not
filed until January 6, 2021, the same date when the plaintiff’s reply was filed. The defendants
filed their “Certificate of Service,” by which their counsel “certifies that Defendants’
Memorandum of Law in Opposition to Bytemark’s Motion to Compel Document Production,
and Exhibits A-H were served via e-mail on counsel of record,” without indicating any date of
service. The defendants’ opposition was not filed until January 6, 2021, the same date when the
defendants’ reply was filed.

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CONCLUSION
For the foregoing reasons, the Court finds that the defendants and the plaintiff: (1) failed
to comply with the Court’s December 14, 2020 order; (2) failed to seek an enlargement of time
as provided in the December 14, 2020 order; (3) failed to acknowledge the untimely filing of
their motions; (4) failed to provide any explanations for their untimely motions; and (5) waived
any opportunity to have the Court consider the parties’ reasons for untimeliness nunc pro tunc.
Accordingly, the defendants’ motion, Docket Entry No. 115, and the plaintiff’s motion, Docket
Entry No. 119, are denied, with prejudice. The plaintiff’s motion, Docket Entry No. 125, and the
defendants’ letter-motion, Docket Entry No. 127, are moot.
Dated: New York, New York
January 13, 2021

SO ORDERED:

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