Free Reply to Response to Motion - District Court of California - California

Case 3:08-cv-01462-IEG-RBB

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1 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 2 DARREN J. ROBBINS (168593) RANDALL J. BARON (150796) 3 A. RICK ATWOOD, JR. (156529) 655 West Broadway, Suite 1900 4 San Diego, CA 92101 Telephone: 619/231-1058 5 619/231-7423 (fax) [email protected] 6 [email protected] [email protected] 7 ­ and ­ JOHN C. HERMAN 8 RYAN K. WALSH JOSEPH BENZ III 9 JASON S. JACKSON 3424 Peachtree Road, N.E. 10 Suite 1650 Atlanta, GA 30326 11 Telephone: 404/504-6500 404/504-6501 (fax) 12 [email protected] [email protected] 13 [email protected] [email protected] 14 Attorneys for Plaintiff 15 UNITED STATES DISTRICT COURT 16 SOUTHERN DISTRICT OF CALIFORNIA 17 CARY A. JARDIN, ) No. 08-CV-1462-IEG-RBB 18 ) Plaintiff, ) REPLY MEMORANDUM IN SUPPORT OF 19 ) PLAINTIFF'S MOTION FOR vs. ) PRESERVATION OF EVIDENCE 20 ) DATALLEGRO, INC. and STUART FROST, ) 21 ) Defendants. ) 22 ) 23 24 25 26 27 28

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NOW COMES plaintiff Cary A. Jardin and makes and files this reply memorandum in

2 support of his Motion for the Preservation of Evidence. 3 Defendants' arguments against the entry of a preservation order can be distilled to two

4 claims: (1) plaintiff's counsel did not "meet and confer" with defendants' counsel prior to filing this 5 Motion, and (2) plaintiff "mischaracterizes" the status of certain electronic evidence by claiming it 6 had been "altered or deleted" when it had not been. Both of defendants' arguments are without 7 merit. 8 I. 9 PLAINTIFF DID ATTEMPT TO MEET AND CONFER As an initial matter, plaintiff's counsel sent three letters to defendants and their patent

10 counsel of record on this issue that spanned the course of eight (8) days. Declaration of John C. 11 Herman ("Herman Decl."), ¶3-6 and Exs. A-C. During this time period, defendants never sent a 12 letter or an email or made a phone call in response. Id. at ¶6. When statements attributed to 13 defendant Stuart Frost ("Frost") about this very litigation disappeared from defendants' website, 14 plaintiff rightfully raised the issue and requested prompt assurances from defendants regarding 15 preservation. The third and last letter from plaintiff's counsel unequivocally stated that "If we do not 16 receive this written confirmation by the close of business tomorrow, we will be forced to seek 17 prompt relief from the Court." Id. at Ex. C. Defendants again failed to respond. Defendants' 18 argument appears to be that plaintiff should be required to make yet another attempt to communicate 19 with defendants on this time sensitive issue.1 This argument is without merit. 20 Defendants' counsel contacted plaintiff's counsel only after plaintiff was forced to file the

21 Motion. At this time, defendants objected to the proposed preservation order as being one-sided. 22 See Defendants' Opposition to Plaintiff's Motion to Approve Order for the Preservation of 23 Documents and Electronic Evidence (Defs. Opp." or "Opposition") at Ex. 1 at 1. This is a complaint 24 they continue to advance in their Opposition Brief. Id. at 1. Yet defendants fail to disclose to the 25 26 Given that defendants failed to respond to three letters over an eight (8) day period, defendants' statement that "this whole exercise could have been avoided" if plaintiff had simply 27 telephoned Datallegro's counsel is remarkable. Defs. Opp. at 3. 28 REPLY MEMORANDUM -108-CV-1462-IEG-RBB
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1 Court that plaintiff, in an effort to resolve this matter short of court intervention, actually proposed a 2 consent order that addressed the very concern raised by defendants ­ making the preservation 3 obligations mutual. Second Declaration of John C. Herman ("Second Herman Declaration") at Ex. 4 A. Defendants failed to respond to this proposed consent order and simply filed their Opposition 5 some eight (8) hours later. Defendants' failure to respond to plaintiff or disclose this attempt by 6 plaintiff to avoid further burdening the Court with this issue, while at the same time representing to 7 the Court that plaintiff "could have saved the court and defendants a substantial amount of time and 8 money" is disingenuous. Defs. Opp. at 1. 9 II. 10 DEFENDANTS DID IN FACT "ALTER" ELECTRONIC EVIDENCE Defendants admit that evidence was removed from their website at www.datallegro.com.

11 Incredibly, defendants claim that comments attributed to their own CEO on his personal blog about 12 this litigation were identified as "spam" and removed.2 Defs. Opp. at 3-4. In so doing, defendants 13 claim that these statements attributed to defendant Frost about this very litigation were not "altered." 14 That claim is not accurate. 15 When defendants' agent caused statements by defendant Frost to be removed from its

16 website, it most certainly "altered" its own website. The website statements could be seen and 17 captured one day by plaintiff's counsel, the next day they could not. Had plaintiff's counsel not been 18 diligent in securing this evidence, it may have been irretrievably lost. Moreover, defendants' agent 19 altered people's ability to see and comment on the very "blog" defendant Frost had created about 20 this litigation. To claim this evidence was not altered strains credibility. 21 III. 22 PRESERVATION ORDER On this record, a preservation order is appropriate in this case for two additional reasons.

23 First, defendants have displayed an aggressive view of how much latitude they consider appropriate 24 in their duties to preserve evidence. If removing a defendant's comments about this litigation from 25
2 While the motives in removing statements about this litigation attributed to defendants' CEO 26 are not necessarily at issue for the purposes of this Motion, plaintiff does note that these comments clearly were not "spam" and that they were not captured by an automated spam filter that prevented 27 them from being posted as they did in fact appear on the website for some period of time.

28 REPLY MEMORANDUM -208-CV-1462-IEG-RBB

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1 their website and putting them into a "spam" folder is not altering evidence in their minds, a 2 preservation order is plainly needed. 3 Second, defendants' efforts to preserve evidence to date have been unsuccessful. Defendants

4 claim that Datallegro's General Counsel gave an oral instruction and then sent a written 5 memorandum regarding the preservation of documents prior to August 22, 2008. Declaration of 6 Greg T. Williams at 1. Unfortunately, neither of these instructions prevented the alteration of 7 defendant's website. Given that defendants' oral instruction and written instruction were not 8 sufficient to prevent the alteration of evidence, a court order is needed. 9 As plaintiff previously offered to defendants, a mutual preservation order is acceptable. A

10 proposed mutual preservation order is attached to the Second Herman Declaration. 11 Given the fact that defendants did alter some evidence, however, plaintiff does believe it

12 appropriate that defendants state what has occurred to date. To the extent that no other evidence has 13 been altered or destroyed, this presents little or no burden on defendants. 14 IV. 15 CONCLUSION All of these factors weigh in favor of entry of the proposed order. The proposed order is

16 narrowly drawn and is not unduly burdensome. Plaintiff respectfully requests that the Court enter an 17 Order Preserving Evidence. 18 DATED: August 28, 2008 19 20 21 22 23 24 25 26 27 28 REPLY MEMORANDUM -308-CV-1462-IEG-RBB 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) s/ A. RICK ATWOOD, JR. A. RICK ATWOOD, JR. Respectfully submitted, COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP DARREN J. ROBBINS RANDALL J. BARON A. RICK ATWOOD, JR.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY MEMORANDUM -408-CV-1462-IEG-RBB
S:\CasesSD\Jardin_Datallegro IP\BRF00053721.doc

COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP JOHN C. HERMAN RYAN K. WALSH E. JOSEPH BENZ III JASON S. JACKSON 3424 Peachtree Road, N.E., Suite 1650 Atlanta, GA 30326 Telephone: 404/504-6500 404/504-6501 (fax) Attorneys for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on August 28, 2008, I electronically filed the foregoing with the Clerk of

3 the Court using the CM/ECF system which will send notification of such filing to the e-mail 4 addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have 5 mailed the foregoing document or paper via the United States Postal Service to the non-CM/ECF 6 participants indicated on the attached Manual Notice List. 7 I certify under penalty of perjury under the laws of the United States of America that the

8 foregoing is true and correct. Executed on August 28, 2008. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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s/ A. RICK ATWOOD, JR. A. RICK ATWOOD, JR. COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: 619/231-1058 619/231-7423 (fax) E-mail:[email protected]

REPLY MEMORANDUM

08-CV-1462-IEG-RBB

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Mailing Information for a Case 3:08-cv-01462-IEG-RBB
Electronic Mail Notice List
The following are those who are currently on the list to receive e-mail notices for this case. A Rick Atwood , Jr [email protected],[email protected],[email protected],[email protected] Seth M Sproul [email protected],[email protected],[email protected]

Manual Notice List
The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy this list into your word processing program in order to create notices or labels for these recipients.
Randall J Baron Coughlin Stoia Geller Rudman and Robbins 655 west Broadway Suite 1900 San Diego, CA 92101

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https://ecf.casd.uscourts.gov/cgi-bin/MailList.pl?320203163635371-L_470_0-1

8/28/2008

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