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Safespan Platform Systems, Inc., Lambros Apostolopoulos, and Paul Kristen, Inc v. Ez Access

May 14, 2012


The opinion of the court was delivered by: Hon. Hugh B. Scott


Before the Court has been a series of motions (described below) by defendants (hereinafter collectively referred to as "Bridgeplatforms") seeking either preclusion of lost profits evidence or compelling discovery of that material from plaintiffs (Docket Nos. 160, 180, 209). Familiarity with the previous decisions relative to those motions (Docket Nos. 178, 213, 218) is presumed. Meanwhile, also pending for determination is plaintiffs' motion for partial summary judgment on patent infringement (Docket No. 182; see Docket Nos. 190 (briefing schedule), 208 (argument set for March 16, 2012), 219 (minutes of argument on March 16, 2012)).

Presently, Bridgeplatforms filed a second (cf. Docket No. 160) motion for preclusion as a discovery sanction involving plaintiffs' failure to adequately disclose materials regarding their lost profits claim (Docket No. 209). Bridgeplatforms withdrew an earlier motion to compel that production (Docket No. 180), relying upon supporting papers for that motion (see Docket No. 209, Bridgeplatforms Atty. Affirm. ¶ 2) and reasserting some of the relief sought in that motion (id.). When this motion was filed, pending after argument (see text minute entry Feb. 23, 2012) were Bridgeplatforms' Objections (Docket No. 179) to this Court's then Report & Recommendation of December 30, 2011 (Docket No. 178, now Decision & Order, see Docket No. 213), recommending denial of their first motion to preclude regarding lost profits materials (Docket No. 160). In that decision, this Court recommended denying Bridgeplatforms' motion to preclude evidence but alternatively ordered plaintiffs to produce discovery on their claim of lost profits (Docket No. 178, Report & Rec. of Dec. 30, 2011, at 7-9). Judge Arcara deemed this Report & Recommendation to be a Decision & Order (Docket No. 213) and affirmed it on appeal (Docket No. 212, Order of Mar. 8, 2012); cf. 28 U.S.C. § 636(b)(1).

This Court then terminated Bridgeplatforms' motion to compel (Docket No. 180) save so much of the relief sought therein that was renewed in their second motion to preclude (Docket No. 209) (Docket No. 218, Order of Mar. 12, 2012, at 2). This second motion to preclude sought

* to preclude proof of lost profits, for failing to produce additional sought materials establishing that claim and providing defense for that claim;

* to declare "Schedule B" not to be privileged;

* to compel production of the original documents constituting "Exhibit H" (Docket No. 209, Bridgeplatforms Atty. Affirm. ¶¶ 2, 12; Docket No. 181, Ex. H); and

* reasonable motion costs and fees (Docket No. 209, Notice of Motion).

Note, Bridgeplatforms changed the relief sought and did not seek as an alternative relief production of the newly identified materials supporting plaintiffs' lost profit claims or additional time to complete this discovery (cf. Docket No. 178, Decision & Order, fact discovery completed by March 30, 2012, expert reports by June 29, 2012, all expert discovery completed by October 15, 2012).

This Court then denied Bridgeplatforms' second preclusion motion based upon Judge Arcara's ruling (Docket No. 212) on the Objections to denial of the first motion to preclude (Docket No. 218, Order of Mar. 12, 2012, at 3-4). This Court then scheduled briefing on the new issue of the privilege status of "Schedule B" (id. at 4), denied compelling plaintiffs to produce originals for "Exhibit H" (id. at 4-5), and denied Bridgeplatforms recovering of its motion expenses as a sanction (id. at 5-6). Plaintiffs response regarding "Schedule B" was due by March 26, 2012; and any reply to this motion was due by April 10, 2012, and that remaining portion of the motion was deemed submitted (without oral argument) on April 10, 2012, as with defendants' motion to recover their reasonable motion expenses (id. at 4, 6). Timely responses (Docket No. 220) and a reply (Docket No. 221) were submitted.

Plaintiffs complain that Bridgeplatforms did not meet and confer with them after plaintiffs announced that the "Schedule B" documents were privileged but inadvertently produced (Docket No. 220, Pls. Atty. Decl. ¶ 2). But Bridgeplatforms argued later that such a conference was conducted when counsel sent her letter of March 5, 2012 (Docket No. 209, Defs. Atty. Affirm. Ex. B; Docket No. 221, Defs. Atty. Affirm. ¶ 4). According to plaintiffs' counsel, the documents in "Schedule B" were prepared by counsel in anticipation of litigation and they claim attorney work product and attorney-client privileges (id. ¶¶ 5-6, see id. ¶¶ 3-4). Bridgeplatforms claims "Schedule B" merely lists missing files and documents and such could not deemed privileged (Docket No. 221, Defs. Atty. Reply Affirm. ¶ 2).

Bridgeplatforms now moves (Docket No. 222) to reconsider the March 12, 2012, Order (Docket No. 218), arguing that this Court misapprehended the facts or law, and that additional facts occurred since March 12, 2012, that warrant reconsideration of this Order (Docket No. 222, Defs. Atty. Affirm. ¶ 1). Bridgeplatforms seeks reconsideration of the denial of preclusion or seeks the grant of an Order compelling answers to discovery ordered back on December 30, 2011. Bridgeplatforms notes the differences between the first and second preclusion motions, with the second seeking to have plaintiffs agree to a date for a Rule 30(b)(6) examination (id. ¶ 2). Plaintiffs' belated and limited production in effect barred Bridgeplatforms from scheduling a Rule 30(b)(6) examination prior to the fact discovery deadline of March 31, 2012 (id. ¶ 4; see Docket No. 178, Report & Recommendation at 10, amending Scheduling Order), and precluded conducting subsequent third party examinations of customers and potential customers. Plaintiffs failed to produce information about materials purchased, inventory costs, job filed and project specifications, information necessary for "but for" lost profits analysis (Docket No. 222, Defs. Atty. Affirm. ¶ 5).

As for the timing of this motion for reconsideration, Bridgeplatforms' counsel states that she inadvertently did not read the Order of March 12, 2012 (Docket No. 218), attached to the docket entry, instead she relied upon only the docket entry text. Counsel did not realize this mistake until April 10, 2012 (Docket No. 222, Defs. Atty. Affirm. ¶¶ 6-7), one day after the 28 days for a motion to reconsider under this Court's Local Civil Rule 7(d)(3) ran. Bridgeplatforms also argued that it would have sought an extension on the Scheduling Order in this case but, since the burden of production was upon plaintiffs, and Bridgeplatforms concluded that plaintiffs should be the movants for such relief (id. ¶ 8).

Plaintiffs briefly respond that this motion for reconsideration is untimely under this Court's Local Civil Rule 7(d)(3) (Docket No. 223, Pls. Atty. Decl. ΒΆΒΆ 2-4); plaintiffs did not address the substance of the motion to reconsider. This Court then held that this motion for reconsideration ...

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