ClearOne Communications v. Chiang et al

Filing 2990

MEMORANDUM DECISION AND ORDER denying 2983 SEALED MOTION to Stay Pending Appeal. Signed by Judge David Nuffer on 6/5/14 (alt)

______________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
CLEARONE COMMUNICATIONS, INC., a
Utah corporation,
Plaintiff,

MEMORANDUM DECISION AND
ORDER DENYING MOTION FOR STAY
PENDING APPEAL

v.
Civil No. 2:07-cv-037-DN
ANDREW CHIANG, an individual, JUN
YANG, an individual, LONNY BOWERS, an
individual, WIDEBAND SOLUTIONS, INC.,
a Massachusetts corporation, VERSATILE
DSP, INC., a Massachusetts corporation, and
BIAMP SYSTEMS CORPORATION, an
Oregon corporation,

District Judge David Nuffer

Defendants.

Donald Bowers moves, under Rule 8(a)(1)(A) of the Federal Rules of Appellate
Procedure, 1 for a stay pending appeal 2 of the court’s order entered on May 8, 2014. 3 The Order
from which Bowers seeks to appeal is a post-judgment order denying Bowers’s motion to stay
the civil contempt proceedings pending the outcome of the criminal contempt case against him.
The Order also provides another opportunity for Donald Bowers to purge his civil contempt as
previously determined by the court 4 by providing to ClearOne “a written response, item by item,
to the items enumerated in the Exhibit A to the Court’s January 8, 2010, Order of Contempt

1

“A party must ordinarily move first in the district court for the following relief: a stay of the judgment or order of a
district court pending appeal.” Fed. R. App. P. 8(a)(1)(A).

2

Emergency Motion for Stay and Notice of Compliance (Motion), docket no. 2983, filed under seal on May 23,
2014.
3
4

Order from the April 21, 2014 Hearing (Order), docket no. 2972, field May 8, 2014.

See Civil Contempt Order and Memorandum Decision, docket no. 2234, filed August 13, 2010; Order at 3, docket
no. 2319, filed October 14, 2010 (“Until Donald Bowers has purged himself of contempt, a finding which must be
made by this court, it is hereby ordered that he shall be incarcerated.”).

[Docket No. 2071], under oath and with supporting documents and materials (“Responses”).” 5
ClearOne will review the responses and provide commentary on the adequacy and completeness
of each response. 6 The court will then carefully review the filed responses for accuracy and
completeness, “and if found to be deficient, the full powers of the court to enforce its orders may
be employed.” 7
Bowers requests the court to stay the order so that he will not be required “to provide
ClearOne, and more specifically its attorney, James Magleby, with information and documents
that are subject to the corresponding [simultaneous] criminal contempt proceedings [Case No. 2:
13 -cr-413-DB-BCW] pending appeal.” 8 Bowers argues that Mr. Magleby was a grand jury
witness in the current criminal contempt case and “[t]he information and documents being
provided to James Magleby, through these civil proceedings, can only and obviously assist him
and the government in the corresponding criminal matter.” 9 Bowers was advised during the
hearing 10 that his production of documents is governed by the protective order 11 entered in this
case and the documents would not be provided to the government.
To obtain a stay pending appeal, 10th Cir. R. 8.1 requires an applicant to
address the following four factors: (1) the likelihood of success on appeal; (2) the
threat of irreparable harm if the stay is not granted; (3) the absence of harm to
opposing parties if the stay is granted; and (4) any risk of harm to the public
interest. 12

5

Order at 1-2 (footnote omitted).

6

Id. at 2.

7

Id.

8

Motion at 1.

9

Id. at 2.

10

Minute Order, docket no. 2963, filed April 21, 2014 (“Mr. Donald Bowers argued that he is not subject to the
protective order (doc. 74). Discussion heard. Court instructed that the protective order applies to the case, all parties
and non-parties.”).

11

Order Granting in Part Motions for Confidentiality Order, docket no. 74, filed March 9, 2007.

12

Spain v. Podrebarac, 68 F.3d 1246, 1247 (10th Cir. 1995).

2

Bowers does not address the likelihood of success on appeal and the court does believe
this factor lends any weight in his favor. The Order is not a final judgment, but a postjudgment order denying a motion to stay the civil proceedings and providing Bowers an
additional opportunity avoid incarceration by purging his civil contempt as found by the
court years earlier. Further, Bowers attached the required information to his motion to
show that the requested stay was not for purposes of delay. 13 A stay at this point would
only delay ClearOne’s receipt and analysis of the submitted documents and further delay
the court ruling on whether Bowers has purged his contempt. The likelihood of success
on appeal appears low.
Bowers claims if the stay is not granted his “4th Amendment and his 6th
Amendment rights will be removed and he will suffer irreparable harm.” 14 Bowers does
provide any explanation how a failure to stay the order will harm him or affect his rights.
Contrary to Bowers’s position, the Order actually provides him another chance to purge
his civil contempt after the court has already determined he failed to do so years earlier.
The threat of irreparable harm if the stay is not granted is low.
Bowers argues that ClearOne would not be harmed by the stay because “[t]his
case has been closed for five (5) years” and the communications equipment companies
formerly controlled by Bowers are no longer in business. 15 Yet since at least the time the
contempt orders were entered in 2010, ClearOne has had a strong interest in Bowers
purging his contempt to insure that its protected information is returned to its sole control
and is not being used in other products. ClearOne has waited long enough to have Bowers

13

Motion at 5.

14

Id. at 4.

15

Id.

3

provide the court ordered information. A stay of the Order will only cause more delay,
which ultimately harms ClearOne.
Finally, Bowers argues that a stay in this matter would serve the public interest
because “[t]he public interest is best served when any citizen's individual rights are
recognized and preserved.” 16 This argument does not show that a stay is necessary to
protect any risk of harm to the public interest.
After careful review of the factors considered when a stay requested, none of the
factors weigh in favor of a stay.
ORDER
IT IS HEREBY ORDERED that the Emergency Motion for Stay 17 is DENIED.
IT IS FURTHER ORDERED that Donald Bowers shall immediately provide the
documents attached to his motion to stay to ClearOne as previously ordered.
Dated June 5, 2014.
BY THE COURT:

____________________________
David Nuffer
United States District Judge

16

Id. at 5.

17

Docket no. 2983.

4