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Point 4 v. Tri-State Surgical Supply

August 27, 2012


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



The Court is in receipt of the parties' joint status report dated August 8, 2012, as well as their supplemental submissions relating thereto; once again, they have failed to reach agreement over the scope of further discovery. See Joint Status Report ("8/8/12 Let."), Electronic Case Filing ("ECF") Docket Entry ("DE") #234.*fn1 This latest round of discovery disputes arises out of plaintiffs' request for documents reflecting the number of times employees of defendant Tri-State Surgical Supply & Equipment, Ltd. ("Tri-State") logged into plaintiffs' Genesys software during the period from July 11, 2010 to March 7, 2011 (the "Login Request").*fn2

For the reasons set forth below, the Court declines, in large part, to grant the discovery requested by plaintiffs.


Genesys is an accounting software program, distributed by plaintiff Point 4 Data Corporation, that operates on a computer development platform called UniBasic,*fn4 which was created by plaintiff Dynamic Concepts, Inc. See 6/13/12 R&R at 2. In this action, plaintiffs allege that Tri-State unlawfully circumvented security protections embedded in their software, in violation of the Digital Millennium Copyright Act, 17 U.S.C. § 1201 et seq. ("DMCA"), which allows for statutory damages "per act of circumvention." See 17 U.S.C. § 1203(c)(3); see also 6/13/12 R&R at 22-30. Plaintiffs' legal theory in this matter is that each time a Tri-State employee logged into Genesys, a separate "act of circumvention" occurred for purposes of statutory damages.*fn5 Thus, plaintiffs' Log-In Request seeks information relevant to their demand for damages.*fn6

I. Identifying the Files Responsive to the Log-in Request

On June 8, 2012, plaintiffs moved this Court to compel Tri-State to, inter alia, respond to their Log-In Request. See Letter to Judge Mann re Discovery Issues (June 8, 2012) at 2, DE #191. In response, Tri-State argued that plaintiffs' motion with respect to the Log-In Request should be denied as moot, as Tri-State was not aware of any documents reflecting this information and plaintiffs reportedly had acknowledged to Tri-State that they were not aware that any responsive documents existed. See Letter in Response to Plaintiffs' June 8, 2012 Letter (June 14, 2012) at 1, DE #197.

On June 18, 2012, this Court held a telephone conference to discuss the Log-In Request, as well as to address other disputed issues. See Transcript (June 18, 2012) ("6/18/12 Tr."), DE #200. During the conference, the Court, as an initial matter, questioned plaintiffs' need for the requested log-in information, as plaintiffs had previously included in their discovery responses a very specific damage calculation based on a precise number of log-ins. See 6/18/12 Tr. at 3-4; see also Dynamic Concepts Incorporated's Amended Responses to Interrogatories (Dec. 30, 2011) at 8, DE #132-18 (plaintiffs asserted that there were 17,393 separate acts of circumvention). In response to the Court's query, plaintiffs explained that they had obtained three days' worth of responsive log-in data from Tri-State's previously produced image drive, and that, by using a "simple command," they were able to call up the log-in data for those three days, from which they then extrapolated the log-ins for the entire time period. See 6/18/12 Tr. at 4. During the conference, plaintiffs conceded that this extrapolation technique was "a perfectly legitimate way to go," but that it was "always nice to have more days of data and that data should be there." 6/18/12 Tr. at 5.

Responding to plaintiffs' desire for additional data, Tri-State repeatedly objected on the ground that plaintiffs had refused to specifically identify the name of the file containing the data or where the file could be located. See 6/18/12 Tr. at 7-8, 13, 22. Plaintiffs then explained that the responsive "document" was actually a "command" that would call up a "simple text file" that contained the log-in data and that plaintiffs were "perfectly happy to just get the file" containing the log-in data. See id. at 6, 10.

After the Court compelled Tri-State, on the record, to "produce information regarding the number of [UniBasic] log-ins for the reference[d] period," Tri-State requested that plaintiffs provide them with a file name. See id. at 21. The Court directed plaintiffs' counsel to provide Tri-State's counsel with a file name. See id. at 23; see also Minute Entry (June 18, 2012), DE #199.

The next day, plaintiffs emailed Tri-State information identifying the two directory paths or "folders" from which plaintiffs had previously extracted relevant log-in data. See Email from Jason Koral (June 19, 2012) ("6/19/12 Koral Email"), DE #212-A.*fn7 In addition, they stated that additional log-in information may be located "in the etc/password file." See id.

II. Technical Issues with Computer Storage Devices to Be Searched

While attempting to clarify what computer files would reflect the requested log-ins, the parties also conferred on what computer storage devices (e.g., hard drives, servers) might contain the files. Three storage devices relevant to the current dispute are (1) the hard drive of a 2007 server used by Tri-State during the relevant time period (the "Hard Drive"); (2) a forensic copy of the Hard Drive, made by Tri-State's third-party consultant Driven (the "Driven Copy"); and (3) a ...

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