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Travel Sentry, Inc. v. Tropp

May 15, 2008

TRAVEL SENTRY, INC., PLAINTIFF,
v.
DAVID A. TROPP, DEFENDANT.



The opinion of the court was delivered by: Roanne L. Mann, Magistrate Judge

MEMORANDUM AND ORDER

Currently pending before this Court, on a referral from the Honorable Eric N. Vitaliano, is a motion by plaintiff Travel Sentry ("Travel Sentry") and its attorneys Seyfarth Shaw LLP ("Seyfarth") (collectively, "movants") for reconsideration of this Court's February 11, 2008 Memorandum and Order ("2/11/08 M&O"), which granted, in part, a motion for sanctions filed by defendant David Tropp ("Tropp"). For the reasons that follow, and having reconsidered its prior opinion, the Court declines to disturb its imposition of sanctions.

BACKGROUND

The factual background of movants' misconduct is fully set forth in the Court's prior opinion and is only summarized below.

On December 4, 2006, Travel Sentry commenced this action seeking declarations of invalidity and non-infringement of two patents issued to Tropp protecting a dual access luggage lock system.*fn1 Later that month, while looking into Travel Sentry's claims, Seyfarth came into possession of 193 Transportation Security Administration ("TSA") documents, forty-one of which related to luggage screening and a lock opening program (the "2002 Program") that Travel Sentry contends constitutes invalidating prior art. 2/11/08 M&O at 2, 7. The documents were sent to Seyfarth by Kurt Krause ("Krause"), a former TSA employee, who, along with Travel Sentry's founder and CEO, worked on the design and implementation of the 2002 Program. Id. at 2.

In spite of Tropp's February 15, 2007 document demands requesting disclosure of all prior art and TSA materials, movants elected not to produce or in any way disclose their possession of the documents obtained from Krause. Id. at 2-3. Movants made this decision in order to protect Travel Sentry's business relationships with Krause and the TSA; since some of the Krause documents were marked as containing sensitive security information ("SSI"),*fn2 and TSA regulations prohibited Krause from disclosing them to Seyfarth, revealing Seyfarth's possession of them risked both exposing Krause and antagonizing the TSA. Id. at 3. While movants thus wanted to conceal their possession of the Krause documents, they were nevertheless interested in using some as evidence of prior art. Id. at 4. Movants therefore sought to independently procure a subset of the Krause documents through a series of so-called Touhy requests. Id. at 4-5. Significantly, these requests were neither pursued expeditiously nor drafted to ensure that all documents responsive to Tropp's requests would be produced.

Id. at 4.

Movants' initial Touhy request was made to the TSA on May 9, 2007, three months after Tropp served his document demands. Id. Movants then proceeded to stand by while the TSA struggled for four months to conduct a search that ultimately, on September 18, 2007, yielded only two documents responsive to their request. Id. at 5. At that point, rather than acknowledge that other documents existed and were in their possession, movants instead served a similar Touhy request on Krause himself. Id. That request, however, proved less successful than the first, as Krause turned over just one additional responsive document. Id. at 6. Meanwhile, during the pendency of these unproductive efforts, movants twice requested and obtained extensions of the discovery deadline, citing, as justifications, their need for the documents and the TSA's delay. Id. at 4-5.

Finally, on October 17, 2007, faced with the prospect of receiving only a fraction of the documents that they knew existed and wanted to use, movants told the TSA of Krause's earlier production and sent the agency eighteen documents for review, stating that these were the only documents relevant to the litigation. Id. Thereafter, at the TSA's insistence, movants relinquished the remaining 175 documents to the agency. Id. Movants simultaneously told Tropp that the eighteen documents sought by their earlier Touhy requests had previously been provided to them by Krause and that the documents had been turned over to the TSA for screening. Id. at 7. Tropp in turn alerted the Court and, on October 22, 2007, moved to preclude use of the Krause documents and Krause's testimony. Id.

Despite these belated revelations, movants maintained their less than forthcoming attitude towards both Tropp and the Court by persisting in making misleading representations regarding Krause's earlier production. Id. at 7 & n.8. Accordingly, on November 19, 2007, the Court, with the parties' consent, contacted the TSA to clarify the status of its review. Id. at 7. Counsel for the TSA informed the Court that while movants had requested review of eighteen documents, there were additional documents that also related to checked baggage screening. Id. TSA's counsel agreed that, following the agency's review for SSI, the TSA would provide all relevant documents to the Court. Id. On November 28, 2007, the TSA completed its review and submitted forty-one documents to the Court, which, with the TSA's consent, released them to the parties. Id. at 8.

After hearing oral argument, the Court ruled, in its 2/11/08 Memorandum and Order, that Tropp's discovery requests clearly encompassed the aforesaid forty-one documents, that movants' responses falsely suggested that full production had been made, and that movants' failure to identify or produce the documents was a willful violation of Rule 34 of the Federal Rules of Civil Procedure. Id. at 11-12, 16-17. Movants' reliance on the documents' potential SSI content did not justify having withheld the documents, inasmuch as movants had neither provided a privilege log nor moved for a protective order.*fn3 Id. at 12-14. The Court also rejected movants' claim that their Touhy requests adequately discharged their discovery duties, especially in light of movants' dilatory conduct in pursuing those requests. Id. at 14-16.

For these and other reasons, the Court concluded that movants' conduct was sanctionable under Rule 37.*fn4 Id. at 15-16. Nevertheless, since the injury to Tropp's litigation posture could be remedied, the Court concluded that the severe sanction of evidence preclusion was not necessary. Id. at 19. Instead, the Court granted Tropp a continuance to conduct any additional discovery warranted by the recently revealed information, and required movants to reimburse Tropp for its reasonable expenses in conducting that discovery and in litigating his motion for sanctions. Id. Additionally, pursuant to Rule 26(g) and the Court's inherent power, and upon finding that sanctions were warranted against Seyfarth for its repeated misrepresentations, the Court fined counsel in the amount of $10,000 to deter such conduct in the future. Id. at 17, 20-21.

On February 26, 2008, movants filed the instant motion challenging the February 11th Memorandum and Order. See Travel Sentry, Inc.'s Objections To, and Request for Reconsideration of, Magistrate Judge's Memorandum and Order Dated February 11, 2008 ("Pl. Mem."). Tropp filed papers in opposition on March 7, 2008. See Defendant's Opposition To Travel Sentry's ...


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