Cvent Inc v. RainFocus et al

Filing 441

MEMORANDUM DECISION AND ORDER: This matter is before the court on Plaintiff Cvent, Inc.'s Motion to Compel Access to Rainfocus's Source Code. (ECF No. 437 .) After considering the record in this case the court will deny the motion. Signed by Magistrate Judge Dustin B. Pead on 3/25/21. (dla)

Case 2:17-cv-00230-RJS-DBP Document 441 Filed 03/25/21 PageID.6709 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
Cvent Inc.,
Plaintiff,

v.
RainFocus, Inc. et. al,

MEMORANDUM DECISION AND
ORDER
Case No. 2:17-cv-00230-RJS-DBP
Chief District Judge Robert J. Shelby

Defendants.

Chief Magistrate Judge Dustin B. Pead

This matter is before the court on Plaintiff Cvent, Inc.’s Motion to Compel Access to
Rainfocus’s Source Code. (ECF No. 437.) 1 After considering the record in this case the court
will deny the motion. 2
Cvent moves the court to access “’Review Laptops’ containing RainFocus’s source code
and Cvent expert Kendyl Roman’s exhibits.” (ECF 437 p. 2.) Cvent argues Mr. Roman should be
granted access in in his home office to the materials. Mr. Roman needs access to “1. Prepare for
deposition; 2. Address 30(b)(6) deposition testimony; 3. check and potentially correct exhibits;
and 4. Analyze RainFocus’s expert report to assist with depositions, motions, and trial.” Id.
In response, RainFocus alleges Cvent’s motion is basically an attempt to fix Mr. Roman’s
deficient expert report. RainFocus points to a hearing held before Chief Judge Shelby. On
January 19, 2021, Chief Judge Shelby denied without prejudice RainFocus’s Motion to Exclude
Mr. Roman, and ordered a second day of deposition to “more fully vet the substantial report and

This matter is referred to the undersigned in accordance with 28 U.S.C. § 636 (b)(1)(A) from Chief Judge Robert
Shelby. (ECF No. 64.)

1

The court has determined that oral argument would not be materially helpful and will decide the motion on the
basis of the written memoranda. DUCivR 7-1.

2

Case 2:17-cv-00230-RJS-DBP Document 441 Filed 03/25/21 PageID.6710 Page 2 of 2

substantiating materials” from Mr. Roman. Jan. 19, 2021 Hr’g Tr. at 44:1. Chief Judge Shelby
also noted that “I wouldn’t look kindly upon the expert now having new opinions beyond those
disclosed in the report at the time of deposition.” Id. at 13:6-7.
The instant dispute arose in working to schedule the deposition. Cvent requested that Mr.
Roman review his work product and the source code on the review computers before any
deposition. RainFocus offered eight-hours of review near Mr. Roman’s home, but “made clear it
would be limited to reviewing existing work-product and not an opportunity to create more or fix
his previous report.” (ECF No. 440 p. 2.) Cvent argues it would be unfair to not allow Mr.
Roman the access it seeks. The court is not persuaded. It is clear Chief Judge Shelby did not
intend a second day of deposition to be an opportunity to change the report. Moreover, the
parties agreed under the Remote Source Code Protocol, that a Review Computer should not
remain in Mr. Roman’s possession after July 15, 2020. Remote Source Code Protocol ¶ 6, Ex. D,
ECF No. 440-4. The court finds RainFocus’s offer a workable solution for Mr. Roman’s need to
refresh his recollection before his deposition.
Accordingly, the motion is DENIED.

DATED this 25 March 2021.

Dustin B. Pead
United States Magistrate Judge

2