Musket Corporation v. Star Fuel of Oklahoma LLC et al
Filing
204
ORDER denying 185 plaintiff Musket Corporation's Motion to Compel (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 9/20/2012. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MUSKET CORPORATION,
Plaintiff,
vs.
STAR FUEL OF OKLAHOMA, LLC,
LINCOLN O. CLIFTON,
DAVID A. SELPH, and
MARK LUITWIELER,
Defendants.
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Case No. CIV-11-444-M
ORDER
Before the Court is plaintiff Musket Corporation’s (“Musket”) Motion to Compel, filed
September 4, 2012. On September 11, 2012, defendant Star Fuel of Oklahoma, LLC (“Star Fuel”)
filed its objection to Musket’s motion to compel. Based upon the parties’ submissions, the Court
makes its determination.
In its motion, Musket requests the Court to compel Star Fuel and/or the parties’ agreed upon
independent forensics expert (the “IFE”) to produce documents responsive to Musket’s discovery
requests. Musket further requests the Court to authorize the IFE to produce the relevant documents
and information available from defendant Mark Luitwieler’s Star Fuel laptop and Mrs. Luitwieler’s
personal laptop directly to the parties for review. Additionally, Musket requests the Court to
authorize the IFE to produce the following information, documents, and electronically stored
information (“ESI”):
a.
A copy of the IFE Disk prepared by the IFE pursuant to the
parties’ joint request, and returned to the IFE by Star Fuel’s
counsel; and
b.
To the extent not included in the IFE Disk, a copy of all
existing system and file metadata from (1) Luitwieler’s Star
Fuel laptop, and (2) Mr. and Mrs. Luitwieler’s personal
laptop, including but not limited to:
i.
index of ll files including file Name, File Item
Number, File Path, File Type, File Size, MD5
Hash, SHA1 Hash and SHA256 Hash,
Created/Accessed/Modified and Last Written
dates/times, If Deleted, and File Status;
ii.
Any additional existing metadata generated
from or contained in log files, activity logs,
access logs, comparison data, network
information, computer information,
installation records, and policy information;
iii.
Computer Registry files, backups, shadow
copies and copies in system volume
information, including but not limited to LNK
files, Prefetch files, log files and Most
Recently Use (MRU) lists.
Musket’s Motion to Compel at 12-13. Finally, Musket requests the Court to compel Star Fuel to
compensate the IFE for his outstanding invoices.
In its response, Star Fuel contends that the documents requested in the subject requests for
production either do not exist or have already been produced. Star Fuel further contends that the
other documents Musket demands in its motion to compel have not been requested in any previous
request for production and that Musket cannot substitute its motion to compel for a properly served
Rule 34 discovery request. Finally, Star Fuel contends that it should not be compelled to pay any
fees billed by the IFE relating to legal representation obtained with respect to his failure to obtain
an Oklahoma license to conduct forensic preservations and examinations.
Musket cites to the following discovery requests in support of its motion: (1) Request for
Production No. 8 in Musket’s Second Discovery Requests to Defendant Mark Luitwieler; (2)
Request for Production Nos. 7, 8, 9, and 10 in Musket’s Fourth Set of Discovery Requests to Star
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Fuel; and (3) subpoenas issued to the IFE. Having carefully reviewed the parties’ submissions, the
Court finds the discovery requests relied upon by Musket do not provide a basis for the relief sought.
First, Request for Production No. 8 in Musket’s discovery requests to defendant Luitwieler1 was
served on defendant Luitwieler and not Star Fuel and, thus, would provide no basis upon which to
compel Star Fuel to provide any documents or information. Additionally, Musket obtained the
information and documents requested in this request for production from Pro Softnet Corporation,
the owner of IDrive, over two years ago.
Second, with respect to Request for Production No. 7 in Musket’s discovery requests to Star
Fuel2, the Court finds that Musket has already received the documents and information requested
in this request for production. Specifically, the IFE’s final report identified all matches on defendant
Luitwieler’s Star Fuel laptop and two other files from one of the other computers, and the log
provided with the Hash Library Search Report identified those files as well. On August 5, 2011,
Musket was provided with a copy of every such file.
Third, with respect to Request for Production Nos. 8, 9, and 10 in Musket’s discovery
requests to Star Fuel3, the Court finds that Star Fuel does not have the indexes requested and cannot
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Request for Production No. 8 provides: “Please produce all documents that show the login,
upload, restore, access, viewing, download and/or logout activity on the IDrive Account from
September 3, 2008 to the present, including but not limited to all Session Logs, Backup/Restore
Logs, and Activity Log Reports for the account.”
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Request for Production No. 7 provides: “Produce the native format versions of all files,
including emails and email attachments and their related families (i.e., if the MD5 hash has hits on
an attachment produce the parent email), located on Luitwieler’s Star Fuel laptop or any other
computer or server owned by Star Fuel that match a MD5 hash values from the ‘Musket Documents
List.’”
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Request for Production No. 8 provides: “Produce an index of all email and contacts located
on Luitwieler’s Star Fuel laptop, the IDrive Account, or any other computer or server owned by Star
Fuel with a filename or MD5 hash value matching one or more of the files identified on the ‘Musket
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be compelled to prepare such indexes. Federal Rule of Civil Procedure 34 provides that discovery
may be had of documents and things that are in the “possession, custody, or control” of a party. “A
document or thing is not in the possession, custody, or control of a party if it does not exist.
Production cannot be required of a document no longer in existence nor of one yet to be prepared.”
8B Charles Alan Wright, et al., Federal Practice and Procedure § 2210 (3d ed. 2010).
“Accordingly, a party cannot be required to prepare, or cause to be prepared, documents not already
in existence solely to satisfy the requests of an opposing party.” Ascom Hasler Mailing Sys. v.
United States Postal Serv., 267 F.R.D. 1, 8 (D.D.C. 2010). Further, the IFE has provided the parties
with a spreadsheet containing the very information that Musket seeks in its Request for Production
Nos. 8 and 9.
Fourth, in relation to any subpoenas issued to the IFE, the Court finds that Musket withdrew
its December 2011 subpoena to the IFE, and, thus, it cannot serve as a basis for Musket’s motion
to compel. With respect to Musket’s August 2012 subpoena to the IFE, on September 11, 2012, the
Court denied defendants Star Fuel and Luitwieler’s motion to quash and ordered the IFE to produce
Documents List’ containing all available metadata, and including at least the Filename, Path,
Creation Date, Modified Date, Access Date, MD5 hash, From, To, CC, BCC, Date Sent, Time Sent,
and exchange Conversion Index.”
Request for Production No. 9 provides: “Produce an index of all email and contacts located
on Luitwieler’s Star Fuel laptop, the IDrive Account, or any other computer or server owned by Star
Fuel with a sent or submit date prior to 9/12/2008 containing all available metadata, and including
at least the From, Subject, Date Sent, Time Sent, and exchange Conversation Index, Creation Date,
Modified Date, Access Date.”
Request for Production No. 10 provides: “Produce an index of all files including emails and
email attachments located on Luitwieler’s Star Fuel laptop, the IDrive Account, or any other
computer server owned by Star Fuel with a creation, modified or access prior to 9/12/2008
containing all available metadata, and including at least the Filename, Path, Creation Date, Modified
Date, Access Date, MD5 hash, From, To, CC, BCC, Date Sent, Time Sent, and exchange
Conversation Index.”
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for forensic inspection and examination a mirror image of Mrs. Luitwieler’s laptop. See September
11, 2012 Order [docket no. 193]. The Court, thus, finds any request by Musket to compel
compliance with its August 2012 subpoena to the IFE is moot.
Other than the above-referenced discovery requests, Musket does not identify any specific
discovery requests seeking a copy of the IFE Disk prepared by the IFE and/or a copy of all existing
system and file metadata from defendant Luitwieler’s Star Fuel laptop and Mrs. Luitwieler’s laptop.
Before a party may move to compel the production of documents, the party must first seek those
documents through a Federal Rule of Civil Procedure 34 request for production. See Fed. R. Civ.
P. 37(a)(3)(B)(iv). Accordingly, the Court finds that plaintiff’s motion to compel in relation to the
production of the IFE Disk and a copy of all existing system and file metadata from defendant
Luitwieler’s Star Fuel laptop and Mrs. Luitwieler’s laptop should be denied. Further, to the extent
that Musket asserts that the parties had an agreement allowing the production of the IFE Disk, the
Court finds, having reviewed the parties’ submissions, that no such agreement existed. In his email,
Star Fuel’s counsel specifically stated as follows:
I do not believe Star Fuel would have any objection regarding the
support log files referenced in Calvin’s May 4, 2012 email. Before
I could state that conclusively, I would need to see what Calvin is
referencing and have an opportunity to review the information first
and make that determination before it is provided to all parties. . . .
Star Fuel would likely have an objection regarding any information
collected outside the scope of the Agreed Protective Order. I just
would not be able to make that determination in advance of seeing
the file and contents of the DVD Calvin is referencing.
July 11, 2012 email from Gideon Lincecum to Matt W. Brockman.
Finally, Musket seeks to compel Star Fuel to compensate the IFE for his outstanding
invoices. Having carefully reviewed the parties’ submissions, the Court finds that Musket has not
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set forth a sufficient basis upon which to compel Star Fuel to compensate the IFE for his outstanding
invoices.
Accordingly, for the reasons set forth above, the Court DENIES Musket’s Motion to Compel
[docket no. 185].
IT IS SO ORDERED this 20th day of September, 2012.
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