Fatpipe Networks India v. Xroads Networks

Filing 514

MEMORANDUM DECISION AND ORDER denying 450 Motion for Sanctions for Failure to Comply with Court's Order. Signed by Judge David Nuffer on 1/10/13 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
FATPIPE NETWORKS INDIA LIMITED,
n/k/a FATPIPE NETWORKS, LTD.,
an India corporation,
Plaintiff,

MEMORANDUM DECISION AND
ORDER DENYING [450]
FATPIPE’SMOTION FOR SANCTIONS
FOR FAILURE TO COMPLY WITH
COURT’S ORDER DKT. NO. 382

vs.

Case No. 2:09−cv−186−DN

XROADS NETWORKS, INC., a Delaware
corporation,

District Judge David Nuffer

Defendant.

FatPipe has moved for sanctions against XRoads “for failing to comply with this Court’s
Order Granting in Part FatPipe’s Motions to Compel (Dkt. no. 382).” 1 In the motions which
preceded that discovery order “FatPipe and XRoads had no meaningful communication before
the motions were filed.” 2 The same is apparently true here. 3 Had the parties communicated, the
issues presented in this motion might have been resolved without the motion.
FatPipe’s briefing is clear and complete, proceeding one by one through the disputed
interrogatories and requests, responses, the court’s order, and the supplemental responses. This
method is very helpful and encouraged. Unfortunately, XRoads’ briefing does not follow the
sequence of the discovery requests, adhering to an organizational scheme which has despite
several readings eluded this reader, but places an apparently arbitrary number on each paragraph
which is apparently unrelated to the organization of its memorandum.
1

FatPipe’s Motion for Sanctions for Failure to Comply with Court’s Order Dkt. No. 382 at 1, docket no. 450, filed
March 7, 2012.
2
3

Order Granting in Part FatPipe’s Motions to Compel (Order 382) at 1, docket no. 382, filed September 26, 2011.

Opposition of Defendant XRoads Networks, Inc., to Plaintiff’s Motion for Violation of Docket No. 382
(Opposition Memorandum) at 12, docket no. 472, filed April 5, 2012.

Part of the challenge with FatPipe’s motion is that it takes an exhaustive approach to
discovery, assuming that every possible question must be answered, but at this stage of the
litigation, some balance is needed as the value of the information sought is weighed in light of
the issues in the case to which those issues pertain. FatPipe makes no case for relevance of
material beyond that provided in the supplemental responses, and in many cases takes a hypertechnical approach to the answers instead of using common sense readings. Further, XRoads has
failed to carefully read Order 382 and respond with precision. Finally, the failure to really
develop these issues by meaningful meet and confer efforts makes the motion unnecessarily
complex.
FatPipe complains:
In response to this Court’s Order, XRoads supplemented its discovery responses on
October 24, 2011; yet many of XRoads’ responses are evasive or incomplete, and/or
unanswered at all. Others are answered subject to General Objections. And, without
compunction, XRoads repeatedly answers with statements that are just not true. 4
This order will examine and dispose of each of the issues FatPipe raises.
General Objections. FatPipe claims that in a phone conversation on January 20, 2012,
“Mr. O’Malley said he could not respond to the inquiry as to whether discovery was withheld
based upon the General Objections, but he would check and respond by no later than January
31.” 5 XRoads recalls the January 20, 2012 conversation differently. Mr. O’Malley says “I had a
specific telephone conversation with opposing counsel, including Barbara Polich and John
Ogilvie, in which I expressly informed them that XRoads was not withholding any information

4

FatPipe’s Memorandum in Support of Motion for Sanctions for Failure to Comply with Court’s Order Dkt. No. 382
(Supporting Memorandum) at 3, docket no. 451, filed March 7, 2012.

5

FatPipe’s Reply Memorandum in Support of Motion for Sanctions for Failure to Comply with Court’s Order Dkt.
No. 382 (Reply Memorandum) at 3, docket no. 491, filed April 25, 2012.

2

or documents pursuant to any General Objections . . . . [This call [occurred on January 20].” 6
While the email record cited by FatPipe is not clear, 7 it is now clear that XRoads is not
withholding any information based on the General Objections.
Interrogatories Nos. 1 and 2. As to these two interrogatories which seek information on
XRoads’ source code, FatPipe’s complaint is that XRoads did not repeat the words suggested in
the court’s order. “If XRoads lacks this information, it should so state in answers . . . .” 8 But
XRoads’ supplemental responses state that “XRoads had provided all the relevant information
that it had in its possession to FatPipe” 9 and “the information regarding functionality differences
are in FatPipe's possession.” 10 The answers are sufficient to say that XRoads has provided all
that it has.
Interrogatory No. 4. This interrogatory asked XRoads to “[i]dentify by name any
persons or companies that have provided any customer, engineering, programming, or marketing
support since 2007 and describe Your relationship with them and the date of service.” 11 XRoads’
response “does not address the portion of the interrogatory directed to customer support or
marketing.” 12 But XRoads asserts without dispute that “Fatpipe [sic] never objected to this
language via direct communications with XRoads and/or a request for further supplementation.

6

Declaration of John C. O’Malley in Support of [473] Defendant’s Opposition to [445] Motion for Sanctions ¶ 21 at
13, docket no. 473-10, filed April 5, 2012.
7

Supporting Memorandum at 4 n.5.

8

Order 382 at 2.

9

Supporting Memorandum at 4.

10

Id. at 6.

11

Id. at 7.

12

Id.

3

Instead, five months after service of same, Fatpipe filed a motion . . . .” 13 Therefore, FatPipe has
forfeited any right to this information.
Interrogatory No. 7 “seeks information about the screen shots contained in a document
first attached to [Defendant] XRoads Partial Initial Disclosure and Response to FatPipe’s Initial
Disclosure . . ., 14 and then subsequently attached as an exhibit to the Declaration of Daren
French 15 . . . .” 16 Because these two documents were produced at different dates five months
apart, FatPipe is dissatisfied with the inconsistent answers XRoads has given that “[t]he screen
shots were taken from the then current firmware which XRoads was deploying at the time the
declaration was made” and “[w]e assume the screen shots were taken at around the same time
they were produced.” 17 However, XRoads has made it clear that it “cannot provide additional
background information which it does not have” 18 which is consistent with the Order’s
acknowledgment that XRoads may lack specific information on this subject. 19 It appears from
the answers that the screen shots in the latter document are identical to the screen shots attached
to the earlier screen shots, which provides some dating.
Interrogatories Nos. 9 and 10 ask for information on “companies with which XRoads
has an affiliation” 20 and owners of XRoads since its inception. 21 Requests Nos. 11 and 12 are

13

Opposition Memorandum at 13.

14

Dated June 4, 2009, attached as Exhibit 11 (docket no. 19-12) to Declaration of Douglas Q. Hahn in Support of
Defendant Xroads Networks, Inc.’s Ex Parte Motion for Modification of Court’s Patent Rules, docket no. 19, filed
June 17, 2009.

15

Declaration of Daren French, Exhibit B, docket no. 88, filed November 18, 2009.

16

Supporting Memorandum at 10.

17

Id. at 9.

18

Opposition Memorandum at 17.

19

Order 382 at 2-3.

20

Supporting Memorandum at 12.

21

Id. at 13.

4

similar. 22 XRoads answered that it “has no other affiliate owners” 23 and produced its
outstanding stock certificates. 24 The interrogatory response is not artfully drafted (what does
“other” reference and why are affiliate and owner status grouped?), but XRoads’ production of
stock certificates 25 is sufficient to respond to these interrogatories and requests. XRoads states it
has “partnerships” with customers, 26 but those entities are not owners in a sense that would make
them knowledgeable about the issues in this case and thus useful for further discovery.
Request No. 1 seeks follow-up emails in XRoads’ effort to retrieve source code from
customers as ordered. 27 XRoads’ supplemental response states “all such documents have been
produced.” 28 But none were produced. The court did order that “[i]f there are no such
documents, XRoads should clearly state that fact in a formal response to the request for
production.” 29 XRoads failed to do so, 30 again not clearly focusing on what Order 382 required.
Even XRoads’ memorandum opposing this motion is hardly clear on this point. 31 But it is clear
now that no such follow-up emails exist. Therefore, FatPipe has made its point that XRoads did
very little to comply with the order to retrieve source code.

22

Id.at 17-18.

23

Id. at 13.

24

Id.

25

Id.

26

Id.

27

Memorandum Decision and Order Granting Motion for Scheduling Conference (Order 112), docket no. 112, filed
January 8, 2010.

28

Supporting Memorandum at 14.

29

Order 382 at 4.

30

Supporting Memorandum at 15.

31

Opposition Memorandum at 17.

5

Request No. 6 asked for documents “that relate directly or indirectly to the relationship
that XRoads has to the following: CloudGuard, Barracuda Networks, and Optrics.” 32 XRoads
did not provide documents, but stated:
CloudGuard is a website developed by one of our resellers. XRoads Networks has no
affiliation or contact with Barracuda Networks, they are a competitor. Optrics is a
reseller for XRoads Networks and hosts several websites which market XRoads
Networks solutions. XRoads Networks has no control or other affiliation with these
websites and/or companies. 33
While not fully responsive, this response is sufficient because more information would likely not
lead to information relevant to the issues in this case, balanced against the time, expense and
burden to seek it.
Request No. 10 sought payment information for all persons who render services to
XRoads and specifically those who participate in XRoads’ marketing, sales and programming. 34
The presumed objective is to identify witnesses and their relative participation in XRoads’
operations. XRoads supplemental response stated that “[a]ll marketing plans, sales programs,
and/or software development was conceived, designed, and implemented within XRoads by
XRoads employees” but only provided payroll records for Mr. French who XRoads identified as
“the only person who has access to add, delete, or modify the XRoads devices firmware and/or
OS software.” 35 This does not comply with Order 382’s requirement of production of payment
records for all XRoads employees involved in marketing plans and sales programs. But since the
essence of this case is the XRoads code, and French’s records have been provided, this is
sufficient.

32

Supporting Memorandum at 15.

33

Id.

34

Id. at 16.

35

Id. at 17.

6

Request No. 14 36 seeks “the isolated code” that performs functions referenced in a
declaration of Mr. French. 37 The supplemental response clearly identifies the already-produced
code. “[T]he code is specifically titled site2site.xroads and multiple versions of this code are
included in the various folders of code provided to FatPipe. Each folder was labeled and the
version information, where available, was provided within the production.” 38 This response is
sufficient.
Request No. 19 seeks documents “that identify any person or entity selling, distributing,
selling, offering to sell, importing, marketing, or manufacturing the XOS platform or Edge
products” 39 and FatPipe complains that XRoads has not produced documents. 40 But the order
required only that “XRoads . . . identify resellers and others offering the XOS platform or
products in response to Request Nos. 18 and 19.” 41 No documents were ordered produced.
Request No. 32 seeks a broad range of “[d]ocuments related to any security or
encryption attributes of the Edge appliances or XOS Platform.” 42 The dispute has been refined
to focus on customer tickets and responses, and XRoads says that this entire database has been
produced to FatPipe, which should moot FatPipe’s claim that XRoads’ keyword searching was
inadequate. 43 (Again, it appears the parties failed to confer before the keyword search was

36

Id. at 18.

37

Docket no. 88, filed under seal November 18, 2009.

38

Supporting Memorandum at 18.

39

Id. at 19.

40

Id. at 20.

41

Order 382 at 4.

42

Supporting Memorandum at 20.

43

Id. at 21, Opposition Memorandum at 15.

7

performed.) The sufficiency of the ticket production is the subject of another motion, 44 which
will resolve this issue.
Requests Nos. 39 and 40 45 similarly deal with a request to inspect a device in XRoads’
possession which is subject to a separate motion. 46 The resolution of that motion will address
this issue.

ORDER
IT IS HEREBY ORDERED that FatPipe’s Motion for Sanctions for Failure to Comply
with Court’s Order Dkt. No. 382 47 is DENIED.
Dated January 10, 2013.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

44

Motion for Sanctions for Ticket Database Spoliation and Discovery Violations, docket no. 447, filed March 7,
2012.

45

Supporting Memorandum at 22-23.

46

FatPipe’s Motion for Sanctions Under Rule 37 and the Inherent Powers of the Court, docket no. 445, filed March
6, 2012.
47

Docket no. 450, filed March 7, 2012.

8