ABT, Inc. v. Sportsfield Specialties, Inc et al

Filing 410

ORDER denying 375 Motion for Reconsideration of the Court's 4/7/2011 Order. Signed by District Judge Richard Voorhees on 6/22/2011. (Pro se litigant served by US Mail.)(cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL DOCKET NO. 5:09CV119-V
ABT, INC.,

)
Plaintiff,
)
)
v.
)
)
PETER JUSZCZYK and
)
SPORTSFIELD SPECIALTIES, INC., )
Defendants.
)
___________________________________ )

ORDER
Denying ABT’s Motion For Reconsideration

THIS MATTER is before the Court on ABT’s Motion For Reconsideration of the Court’s
April 7, 2011 Order Denying ABT’s Motion For Show Cause Order pursuant to Rule 54(b) of the
Federal Rules of Civil Procedure, filed April 29, 2011. (Document #375)
On April 7, 2011, the Court issued a written Order setting forth the reasons for its decision
to 1) cancel the previously scheduled evidentiary hearing; and 2) deny ABT’s Motion for Show
Cause Order to explore whether Sportsfield should be held in contempt of the Preliminary Injunction
and its terms. (Document #356)
Rule 54(b) provides in part:
[A]ny order or other decision, however designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties does not end the action
as to any of the claims or parties and may be revised at any time before the entry of
a judgment adjudicating all the claims and all the parties' rights and liabilities.
FED. R. CIV. P. 54(b) (2009); American Canoe Assoc., Inc. v. Murphy Farms, Inc., 326 F.3d 505,
514-15 (4th Cir.2003) (distinguishing motions to reconsider a final judgment with motions to
reconsider interlocutory orders and explaining that less stringent standard applies to the latter); see
also Moses H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 12 (1983) (reconsideration
is discretionary). Motions for reconsideration of an interlocutory order are appropriately granted
upon (1) the discovery of new evidence, (2) an intervening development or change in the controlling

law; or (3) the need to correct a clear error or prevent manifest injustice. See Pender v. Bank of
America, Corp., 2011 WL 62115 (W.D.N.C. Jan. 7, 2011) (internal citations omitted); Faris v. SFX
Entm’t, Inc., 2006 WL 3690632, *8 (W.D.N.C. Dec.12 ,2006) (“Reconsideration by re-argument is
not proper under Rule 54.”)
In support of its motion for reconsideration, ABT submits a Declaration of Susan T. McMinn
(“McMinn”), executed April 28, 2011. (Document #376 / Exh. 1) McMinn is the retained forensic
computer expert tasked with performing independent forensic computer analyses for Sportsfield to
assist with and ensure Sportsfield’s compliance with the Preliminary Injunction, namely, Subsections
(V)(1)(d) through (f).1 In connection with her work for Sportsfield, McMinn has already submitted
three (3) Declarations detailing her work in this regard and her firm’s three hundred and thirty-five
(335) hours on this project. (Documents ##264, 277, 337 / Second Suppl. Decl. ¶13) Even though
these matters were fully briefed prior to the Court’s cancellation of the April 6, 2011 hearing, ABT
proffers new information from Ms. McMinn not included in the parties’ original briefing. Likewise,
prior to seeking reconsideration, ABT did not indicate that testimony from McMinn was necessary

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Sportsfield was directed to confirm compliance as follows:
d) Juszczyk and SSI shall return all ABT trade secrets or confidential
information in their possession, custody, or control;
e) Defendants shall confirm by independent forensic analysis of Juszczyk’s
personal computers and hardware, the SSI computer network and any computers
or hardware of Oliver, Moxley, Sohns, Maney, Goulet, Hulbert, Rosa, and
Mason, that all such data has been returned;
f) Defendants shall preserve all data currently stored on computers over which
they have possession, custody or control, and personal digital assistant or mobile
telephone, including any information stored on backup media, and produce to an
independent computer forensic expert the computer hard drives or other
hardware from any and all computers which currently stores or has stored ABT
confidential information and trade secrets;

(Document #230 / Preliminary Injunction Order at 20.)
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or even preferred. McMinn’s most recent declaration explains:
[I]n the last quarter of 2010, I initially proposed an analysis that also included
an examination of the Defendants’ systems and computers utilizing search terms,
which are words, phrases or labels embedded in any searchable document. However,
I have not been authorized by Sportsfield to conduct an examination utilizing search
terms.
To date, I cannot say with any certainty that I have located or identified all
ABT confidential information and trade secrets on Sportsfields’s systems and
computers.
***
It is my recommendation that additional forensic analysis work be performed.
This work may involve keyword searches, additional hash analysis to include the
hash values of the Seagate USB drive and analysis of additional computers. I may
make additional recommendations as a result of this analysis.
I have communicated my recommendation to conduct keyword searches and
additional hash value analysis to the attorneys for Sportsfield and it is my
understanding that they have received approval from their client.
(McMinn 4/29/11 Decl. ¶¶18, 20-22) Thus, McMinn states that Sportsfield “approved” additional
forensic analysis, but has not yet “authorized” the additional work recommended. (Id.)

In its

response to ABT’s motion to reconsider, Sportsfield clarified that the new search recommended by
McMinn in December 2010 is currently underway at Sportsfield’s expense.2 (Def.’s Resp. In Opp’n
at 7-8.)
The Court is not inclined to reconsider its earlier decision denying ABT’s motion as the
previous decision does not amount to clear error or work any manifest injustice. McMinn’s earlier
reports collectively reveal that Sportsfield essentially permitted her to chase every rabbit trail in an
effort to comply with the Court’s Order. In previous declarations, McMinn represented that she was

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ABT contends that Sportsfield only elected to proceed with the additional analysis because it
learned that McMinn would be sharing her recommendation with the Court via ABT’s motion.
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provided “complete and unfettered access to Sportsfield’s network servers and the relevant
computers identified in the Court’s Order.” (McMinn 12/20/10 Decl. ¶6) McMinn has analyzed
Sportsfield’s computer system in Delhi, New York, as well as more than 30 computers and laptops,
including analysis of two (2) employee computers not specifically identified by the Court’s Order.
(McMinn 12/20/10 Decl. ¶6; McMinn 1/21/11 Suppl. Decl. ¶7) According to McMinn, all
potentially offending matching files have been permanently deleted and the offending sources wiped
clean. (McMinn 1/21/11 Suppl. Decl. ¶¶7,8) Sportsfield’s counsel then produced and transferred
copies of the identified files to ABT.3 (McMinn 4/28/11 Decl. ¶12 ) While further forensic
analysis by way of key search terms may indeed be beneficial, McMinn does not suggest that
Sportsfield’s counsel or anyone else affiliated with Sportsfield has sought to thwart compliance or
undermine her analyses. Despite some delay in the process, there is simply no evidence of
contemptuous behavior by Sportsfield.
Finally, the Court will not engage in the parties’ dispute concerning whose trial expert
McMinn really is and what communications, if any, between McMinn and ABT’s counsel might
have been inappropriate per the discovery rules. See FED. R. CIV. P. 26(b)(4). Regardless of who
calls McMinn as a trial witness first, McMinn’s work for both ABT and Sportsfield potentially
places her in the unique position to offer both factual and opinion testimony on behalf of both
entities. To the extent ABT accuses Sportsfield of co-opting its trial expert, ABT should have voiced
objection well before McMinn accepted and undertook the forensic computer analyses of

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ABT maintains that McMinn cannot confirm return of all of ABT’s protected files because
McMinn didn’t personally review the files that were transferred by counsel or facilitate the actual
transfer. However, there is nothing in the record to indicate that Sportsfield’s counsel did not produce
the entire compilation of potentially offending files identified by McMinn.
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Sportsfield’s equipment.4
IT IS, THEREFORE, ORDERED that ABT’s Motion For Reconsideration (Document
#375) of the Court’s April 7, 2011 Order (Document #356) is hereby DENIED.

Signed: June 22, 2011

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Sportsfield raises the question of McMinn’s ability to testify objectively concerning her
findings. Sportsfield suggests that McMinn has been identified as one of their trial experts and that “the
work product protections of Rule 26 have been irreparably breached.” (Def.’s Resp. 10) ABT claims
that McMinn is its expert witness for trial, exclusive of Sportsfield’s need for an “independent” forensic
computer expert. In the context of the Preliminary Injunction Order, the term “independent” was meant
to make clear that Sportsfield’s computer analyst could not be regularly employed by Sportsfield. In
other words, Sportsfield’s compliance with the Court’s Order could not have been accomplished by
forensic analysis conducted by its own IT staff. Therefore, McMinn will be permitted to provide
testimony, under oath, concerning her analysis of the Sportsfield systems independent of the influence of
either party or counsel.
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