United States District Court, D. Oregon
STEPHEN ENGLISH ERICK J. HAYNIE JULIA E. MARKLEY PERKINS
COIE, LLP ATTORNEYS FOR PLAINTIFF
A. SHLACHTER JOSHUA L. ROSS STOLL STOLL BERNE LOKTING &
SHLACHTER P.C. BRUCE G. VANYO RICHARD H. ZELICHOV CHRISTINA
L. COSTLEY KATTEN MUCHIN ROSENMAN LLP ATTORNEYS FOR
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE
Vesta Corporation brings this Motion for Imposition of
Sanctions against Defendants Amdocs Management Limited and
Amdocs, Inc. Pl.'s Mot. Sanc., ECF 524. Plaintiff
contends that Defendants “denied and actively concealed
evidence” that they targeted Plaintiff's customers
AT&T and Cricket. Id. at vii. Plaintiff requests
the Court sanction Defendants by providing additional time
for discovery, informing the jury of Defendants'
misconduct, instructing the jury that they may consider the
alleged misconduct in their deliberations, and awarding
monetary sanctions. Id. at 17-20. The Court grants
Plaintiff's motion in part. The Court will allow
Plaintiff additional discovery related to AT&T and
Cricket and award monetary sanctions. However, the Court
declines to award additional sanctions at this time.
Vesta, an electronic payments and fraud prevention technology
company, has sued Defendants Amdocs Management Limited and
Amdocs, Inc. (collectively, “Defendants”),
telephone billing software and services companies, for breach
of contract and misappropriation of trade secrets. Fourth Am.
Compl. Intro, ECF 405. Specifically, Plaintiff alleges that
in the course of collaborating on various projects and the
attempted acquisitions of Plaintiff by Defendants, Plaintiff
shared “highly confidential and proprietary
information, ” which Defendants used and relied upon
“improperly to create, price and sell a competing
product in order to increase its profits.” Id.
As a result of Defendants' misappropriation and breach of
contract, Plaintiff alleges it “suffered lost profits
and royalties on various accounts, including MetroPCS, Sprint
and T-Mobile.” Id. at ¶¶ 79, 85, 95,
various points in this litigation, Plaintiff has sought
information pertaining to Defendants attempts to sell their
product to AT&T and Cricket. In September of 2015,
Plaintiff propounded Interrogatory No. 4, which requested
Defendants “state with specificity each customer or
potential customer that [Defendants] have sold or attempted
to sell [their] Payment Solution.” Markley Decl. Ex.
12, at 10, ECF 525. After Defendants initially did not
respond, the Court ordered Defendants to answer Interrogatory
4. Opinion & Order, April 4, 2016, ECF 221. Defendants
responded almost three weeks later and indicated that they
had “sold or provided sales proposals concerning its
enterprise payment processing (“EPP”) solution
to” MetroPCS, Sprint, T-Mobile, Comcast, and
Cablevision. Markley Decl. Ex. 15, at 8, ECF 526.
September of 2016, Plaintiff issued Requests for Production
108 and 109, which sought documents related to
Defendants' pitch of EPP products to AT&T and
Cricket. Pl.'s Mot. Sanc. 5 (citing Markley Decl. Ex. 16,
ECF 525). Defendants again declined to respond. Id.
Plaintiff sought the Court's assistance, but it declined
to compel Defendants' response. Markley Decl. Ex. 17, ECF
525 (Hearing, Sept. 15, 2016, at 66:1-17). At that time,
Plaintiff could not identify for the Court any reason it
believed that Defendants had a connection to AT&T or
Cricket. Id. Plaintiff only stated that it
“might have seen something about [Cricket and AT&T]
in the documents produced on September 13.”
Id. In its motion, Plaintiff emphasizes that
Defendants remained silent during this discussion. Pl.'s
Mot. Sanc. 6.
12, 2017, Plaintiff took a 30(b)(6) deposition of Manuel
Zepeda on topics related to Defendants' marketing of
their payment solution to other companies. Markley Decl. Exs.
18, 19, ECF 525. During that deposition, Plaintiff asked Mr.
Zepeda if he was “aware that [Defendants] attempted to
market [their payment solution] to AT&T” and if he
was “aware of any other entity that [Defendants]
attempted to market [their] payment solution to
besides” Sprint, MetroPCS, T-Mobile, Comcast, and
Cablevision. Id. at Ex. 19 (Zepeda Dep. 111:3-10).
To both questions, Mr. Zepeda answered “No.”
preparation for the the May 23, 2017, deposition of
Defendants' witness Howard Connors, Plaintiff uncovered
evidence that suggested Defendants had attempted to sell a
competing product to AT&T and Cricket. Pl.'s Mot.
Sanc. 7 (citing Markley Decl. Ex. 20-21, ECF 526). Plaintiff
used that evidence at Mr. Connors's deposition, and he
admitted to his participation in meetings with Cricket about
Defendants' product and his knowledge of Defendants'
efforts to sell its product to AT&T. Markley Decl. Ex.
22, ECF 526 (Connors Dep. 60:15-63:12; 139:22-140:25;
months that followed, Plaintiff again sought documents
related to Defendants' external communications with
AT&T and Cricket with the assistance of the Court.
Hearing, Aug. 1, 2017, ECF 455; Order, Sept. 12, 2017, ECF
490. The “Court granted, without limitation,
Vesta's request for Amdocs' pitches and proposals of
its EPP product to AT&T and Cricket and, relatedly,
Amdocs' communications with AT&T and Cricket about
Vesta and processing payments.” Order, ECF 490.
Defendants appear to have provided some documents pertaining
to Defendants' external communications regarding Cricket
and AT&T. Pl.'s Mot. Sanc. 8.
November 3, 2017, Plaintiff emailed Defendants regarding the
present motion, and the parties conferred on this issue.
Zelichov Decl. Ex. 3, ECF 530. Defendants indicated they were
willing to provide internal correspondence regarding sales
pitches to AT&T and Cricket. Id. at 3, 5.
Plaintiff declined their offer on the grounds that it
“still falls short of the discovery Vesta seeks”
and filed this motion. Id. at 1.
imposes a duty on counsel to certify “the lawyer has
made a reasonable effort to assure that the client has
provided all information and documents available to him that
are responsive to the discovery demand.” Fed.R.Civ.P.
26(g), 1983 advisory committee note. Rule 26 also requires
parties to supplement their disclosures, interrogatories,
requests for production, or requests for admission “in
a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect
and . . . the additional or corrective information has not
otherwise been made known to the other parties during the
discovery process or in writing.” Fed. R. Civ. Pro.
26(e)(1)(A). Under Rule 30(b)(6), when an organization is
named as a deponent, it must “designate one or more
officers, directors, or managing agents . . . to testify on
its behalf.” Fed. R. Civ. Pro. 30(b)(6). ...