M Seven System Limited v. Leap Wireless International, Inc. et al, No. 3:2012cv01424 - Document 176 (S.D. Cal. 2014)
Court Description: ORDER denying 110 Motion for Contempt; granting 111 Motion to File Documents Under Seal. Signed by Magistrate Judge Ruben B. Brooks on 8/11/2014. (sjt)
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M Seven System Limited v. Leap Wireless International, Inc. et al Doc. 176 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 M SEVEN SYSTEMS LIMITED, 12 Plaintiff, 13 v. 14 LEAP WIRELESS INTERNATIONAL, INC. et al, 15 Defendants. 16 17 18 19 20 21 Civil No. 12cv01424 CAB(RBB) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ORDER DENYING MOTION [FOR ORDER TO SHOW CAUSE HEARING] TO HOLD DEFENDANTS CHRIS YOUNG CHOI, YONGSIK "STANLEY" PARK, AND ACTSCOM USA, INC. IN CONTEMPT FOR FAILURE TO COMPLY WITH JUDGE MAJOR'S MARCH 17, 2014 ORDER [ECF NO. 110]; ORDER GRANTING JOINT MOTION TO SEAL EXHIBITS 5-9 TO VAN LOON DECLARATION IN SUPPORT OF MOTION TO HOLD DEFENDANTS CHRIS YOUNG CHOI, YONGSIK "STANLEY" PARK, AND ACTSCOM USA, INC. IN CONTEMPT FOR FAILURE TO COMPLY WITH JUDGE MAJOR'S MARCH 17, 2014 ORDER [ECF NO. 111] 22 23 On May 11, 2014, Plaintiff M Seven System Limited ("M Seven") 24 filed a "Motion to Hold Defendants Chris Young Choi, Yongsik 25 'Stanley' Park, and Actscom USA, Inc. in Contempt for Failure to 26 Comply with Judge Major's March 17, 2014 Order [ECF No. 110]" (the 27 "Motion for Contempt") along with a Memorandum of Points and 28 Authorities, declarations from Erica Van Loon and Robert 1 12cv01424 CAB(RBB) Dockets.Justia.com 1 Stillerman, and several exhibits.1 2 Court find Defendants Chris Young Choi, Stanley Park, and Actscom 3 USA, Inc. (collectively, the "Choi Defendants") in civil contempt 4 for their failure to comply with United States Magistrate Judge 5 Barbara L. Major's "Order Granting in Part Plaintiff's Motion to 6 Compel Production of Documents from Defendants Actscom USA, Inc., 7 Chris Young Choi, and Stanley Park [ECF No. 71]." 8 Attach. #1 Mem. P. & A. 4, ECF No. 110.)2 9 and Defendant Cricket Communications, Inc. ("Cricket") filed a Plaintiff M Seven asks that the (Mot. Contempt On the same day, M Seven 10 joint motion to file documents under seal [ECF No. 111], along with 11 several proposed sealed exhibits [ECF Nos. 112-116]. 12 The Choi Defendants, on May 28, 2014, filed an "Opposition to 13 M7's Motion to Hold Defendants in Contempt for Failure to Comply 14 with Judge Major's March 17, 2014 Order [ECF No. 125]" (the 15 "Opposition"), with declarations from Choi and Park, and several 16 exhibits. 17 for Contempt and Sanctions [ECF No. 127]" on the same day, with 18 declarations and exhibits. 19 "Reply in Support of Plaintiff M Seven System Limited's Motion to 20 Hold Defendants Chris Young Choi, Yongsik 'Stanley' Park, and Defendant Cricket filed an "Opposition to M7's Motion On June 4, 2014, Plaintiff filed a 21 1 22 23 24 25 26 27 28 The Court construes Plaintiff's motion as a request that an order to show cause be issued as to why Defendants should not be held in contempt. See Martinez v. City of Avondale, No. CV–12–1837–PHX–LOA, 2013 WL 5705291, at *1 (D. Ariz. Oct. 18, 2013) ("[T]he Court construes Defendants' Motion for Contempt as also requesting an order to show cause hearing why contempt sanctions should not be issued . . . .") (citations omitted); Hawecker v. Sorenson, No. 1:10–cv–00085–JLT, 2013 WL 3805146, at *3 (E.D. Cal. July 22, 2013) ("[T]he Court construes the Government's motion as a motion for an order to show cause, thereby initiating the civil contempt proceeding for Defendant's failure to comply with the terms of the Consent Decree."). 2 All documents will be cited using the page numbers assigned by the electronic case filing system. 2 12cv01424 CAB(RBB) 1 Actscom USA, Inc. in Contempt for Failure to Comply with Judge 2 Major's March 17, 2014 Order [ECF No. 131]" (the "Reply") and a 3 "Reply to Defendant Cricket Communications, Inc.'s Opposition to 4 Motion for Contempt and Sanctions [ECF No. 135]." 5 The Court requested supplemental briefing from M Seven and 6 Choi [ECF No. 140]. Plaintiff filed its supplemental brief on June 7 12, 2014 [ECF No. 141], and Defendant filed his supplemental brief 8 on June 19, 2014 [ECF No. 150]. 9 suitable for resolution on the papers. The Motion for Contempt is See S.D. Cal. Civ. R. 10 7.1(d)(1). 11 Contempt [ECF No. 110] is DENIED, and an order to show cause will 12 not be issued. 13 For the reasons explained below, the Motion for I. FACTUAL AND PROCEDURAL BACKGROUND 14 The following factual and procedural background is taken from 15 Judge Major's "Order Granting in Part Plaintiff's Motion to Compel 16 Production of Documents From Defendants Actscom USA, Inc., Chris 17 Young Choi, and Stanley Park": 18 19 20 21 22 23 24 25 26 27 28 Plaintiff filed a complaint in the instant matter on June 12, 2012. ECF No. 1. In the complaint, Plaintiff alleges misappropriation of trade secrets, copyright infringement, violation of the Digital Millennium Copyright Act, violation of California Penal Code § 502, unfair competition, civil conspiracy to misappropriate trade secrets, and civil conspiracy to unfairly compete. Id. at 1. Specifically, Plaintiff, a R&D company providing wireless solutions to customers in "emerging and established telecommunications markets worldwide,” developed the M7 source code for the CDM7126 mobile phone, which was launched in March 2008. Id. at 4. The phone contained Advanced Wireless Services ("AWS") which gave Plaintiff a "unique and competitive advantage in the AWS marketplace." Id. at 4-5. Plaintiff "is the owner, by work for hire and by way of assignment, of copyrights in the M7 Source Code." Id. at 5. Defendant Choi was a general manager at Plaintiff's with access to trade secrets concerning the CDM7126 phone. Id. Defendant Choi subsequently went to work as the Senior Director of 3 12cv01424 CAB(RBB) 1 2 3 4 5 6 7 8 Device Development and Design for Defendant Cricket. Id. Plaintiff alleges that while working for Defendant Cricket, Defendant Choi was "responsible for the procurement and deployment of the CDM7126 phone being supplied by [Plaintiff] at that time." Id. at 6. In March 2008, Defendant Choi offered to purchase M7 source code and hardware design from Plaintiff. Id. Plaintiff refused and two months later other former employees of Plaintiff formed ACTScom Korea, of which Defendant Choi was the CEO. Id. In September 2008, Defendant Park left Plaintiff and went to work as the Chief of Software Engineering, Chief of Project Management, Chief of Marketing and Chief of Product Management of ACTScom Korea. Id. Defendant Cricket and Defendant ACTScom Korea "entered into a development and supply contract for AWS mobile phones" in October 2008. Id. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 In January 2009, Defendant ACTScom USA was incorporated in San Diego with Defendant Choi as the primary investor and CEO and Defendant Park as the CFO. Id. at 7. One month later, Defendant Cricket commercially launched the A100 phone, which Plaintiff alleges contains "the stolen M7 Source Code and Hardware Design." Id. Plaintiff further alleges that Defendant "ACTScom [USA] would not have been able to offer AWS phones at the $61.99 price point, less than a year after its incorporation and with only a few months of research and development, if it had conducted its own original research and development." Id. Defendant Cricket replaced Plaintiff with ACTScom USA and began selling phones supplied by ACTScom USA. Id. Plaintiff alleges that Defendant ACTScom USA supplied Defendant Cricket with phones incorporating the stolen Source Code and Hardware Design, including models A100, A200, A300, A310, and A210. Id. On July 30, 2012, Defendant Cricket Wireless filed a motion to dismiss [ECF No. 21] as did Defendants [ECF No. 22]. Both motions were granted in part and denied in part on June 26, 2013. ECF No. 33. All Defendants answered the complaint on August 1, 2013 [ECF Nos. 34 & 35] and participated in a telephonic Early Neutral Evaluation Conference on September 9, 2013 [ECF Nos. 38 & 39]. The parties participated in a telephonic Case Management Conference on October 7, 2013 [ECF Nos. 44 & 45] and the Court entered the parties' protective order on October 21, 2013 [ECF No. 49]. On February 3, 2014, counsel for all parties jointly contacted the Court regarding a discovery dispute brought by Plaintiff concerning Defendants and their objections to Plaintiff's discovery requests for various versions of source code. ECF No. 58. 28 4 12cv01424 CAB(RBB) 1 (Order Granting Part Pl.'s Mot. Compel 1-3, ECF No. 71 (footnote 2 omitted).) 3 M Seven filed a "Motion to Compel Production of Documents from 4 Defendants Actscom USA, Inc., Chris Young Choi, and Stanley Park 5 [ECF No. 59]" (the "Motion to Compel") before Judge Major on 6 February 10, 2014. 7 the source code for five different phones -- models A100, A200, 8 A210, A300, and A310. 9 21, 2014, a "Motion by Defendants Actscom USA, Inc., Chris Choi, 10 and Yongsik Park for Summary Judgment, and/or to Dismiss or Stay 11 [ECF No. 63]" was filed. 12 to Plaintiff's Motion to Compel" [ECF No. 66], and M Seven filed 13 its "Reply in Support of Plaintiff's Motion to Compel Production of 14 Documents" [ECF No. 68]. 15 motions, the Choi Defendants filed an ex parte application to stay 16 discovery [ECF No. 95], and on April 14, 2014, United States 17 District Court Judge Cathy Ann Bencivengo granted their request 18 [ECF No. 106]. 19 There, Plaintiff moved to compel production of (Mot. Compel 6, ECF No. 59.) On February The Choi Defendants filed an "Opposition In connection with their dispositive On March 17, 2014, Judge Major granted in part and denied in 20 part the Plaintiff's Motion to Compel [ECF No. 71]. She directed 21 the Defendants to produce the source code for the A200, A210, A300, 22 and A310 phones. 23 71.) 24 code, each Defendant was directed to provide a declaration 25 outlining what efforts were made to do so. 26 subsequently transferred to the undersigned [ECF No. 84]. 27 Defendants Choi, Park, and Actscom USA, Inc. filed declarations in 28 accordance with Judge Major's order on April 11, 2014 [ECF Nos. (Order Granting Part Pl.'s Mot. Compel 8, ECF No. If Defendants were unable to obtain and produce the source 5 (Id.) The case was 12cv01424 CAB(RBB) 1 103, 104]. On May 11, 2014, Plaintiff filed the Motion for 2 Contempt [ECF No. 110]. 3 While this motion was pending, Judge Bencivengo granted 4 summary judgment on claim preclusion grounds in favor of Defendant 5 Choi on June 4, 2014, dismissing the claims against him [ECF No. 6 137]. 7 in an action in South Korea, precluding M Seven from seeking relief 8 in this Court. 9 No. 137.) She held that a final judgment had been entered against Choi (Order Granting Part Dispositive Mot. 8, 11, ECF She also noted that since the filing of the "Motion by 10 Defendants Actscom USA, Inc., Chris Choi, and Yongsik Park for 11 Summary Judgment, and/or to Dismiss or Stay," a final judgment had 12 been entered against Defendant Park in South Korea. 13 The request of Park and Actscom USA for a dismissal or stay was 14 deemed withdrawn in light of the entry of judgment against Park in 15 South Korea. 16 file additional dispositive motions by June 13, 2014. 17 Order Setting Br. Schedule 2, ECF No. 126).) 18 (Id.) (Id. at 11.) Park and Actscom USA, Inc. were allowed to (Id. (citing M Seven objected to the Choi Defendants' declarations filed in 19 opposition to the Plaintiff's motion to hold them in contempt [ECF 20 Nos. 132, 133], and the Defendants objected to the evidence 21 supporting the Plaintiff's Reply [ECF No. 144]. 22 responded to the objections [ECF Nos. 147, 148, 152]. 23 2014, in light of the dismissal of the claims against Choi, 24 supplemental briefing was requested from Plaintiff and Choi 25 regarding whether this Court could find a dismissed party in 26 contempt. 27 filed their supplemental briefs on June 12 and 19, 2014, 28 respectively [ECF Nos. 141, 150]. (Mins., June 5, 2014, ECF No. 140.) Each side On June 5, M Seven and Choi Park and Actscom USA, Inc. filed 6 12cv01424 CAB(RBB) 1 a Motion for Summary Judgment on June 13, 2014 [ECF No. 142]. 2 Plaintiff has appealed the "Order Granting in Part the Dispositive 3 Motion of Defendants Chris Young Choi, Stanley Park, and Actscom 4 USA, Inc. [ECF No. 137]" to the Ninth Circuit Court of Appeals on 5 June 30, 2014 [ECF No. 162].3 6 gave Plaintiff twenty-one days to voluntarily dismiss the appeal 7 because "[i]t appear[ed] that the district court's order challenged 8 in this appeal did not dispose of the action as to all claims and 9 all parties." On July 14, 2014, the Ninth Circuit (Order 1, ECF No. 174.) In the alternative, 10 Plaintiff was allowed to "show cause why [the appeal] should not be 11 dismissed for lack of jurisdiction." II. 12 13 (Id. (citation omitted).) LEGAL STANDARDS Generally, "proceedings for civil contempt are instituted by 14 the issuance of an Order to Show Cause . . . why a contempt 15 citation should not issue and a notice of a date for the hearing." 16 Hawecker v. Sorenson, 2013 WL 3805146, at *3 (citation omitted) 17 (internal quotation marks omitted). 18 contempt proceeding is 'a trial within the meaning of Fed.R.Civ.P. 19 43(a) rather than a hearing on a motion within the meaning of 20 Fed.R.Civ.P. 43(e)[;] . . . the issues may not be tried on the In the Ninth Circuit, "a civil 21 3 22 23 24 25 26 27 28 M Seven's Notice of Appeal does not divest this Court of jurisdiction to rule on the Motion for Contempt. See 20 James Wm. Moore et al., Moore's Federal Practice § 303.32[2][b][iii], at 303-79 (3rd ed. 2013) ("Most courts have held that a district court may award attorney's fees and impose sanctions after a timely notice of appeal has been filed.") (citing Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 956-57 (9th Cir. 1983)) (other citations omitted); see Kadant Johnson Inc. v. D'Amico, No. 3:12–mc–00126–SI, 2012 WL 2019648, at *5 (D. Or. June 5, 2012) ("The filing of a notice of appeal does not divest this court of authority to issue a contempt citation for failure to comply with a court order.") (citing United States v. Phelps, 283 F.3d 1176, 1181 (9th Cir. 2002); Stein v. Wood, 127 F.3d 1187, 1189 (9th Cir. 1997); Masalosalo, 718 F.2d at 957; Am. Town Ctr. v. Hall 83 Assocs., 912 F.2d 104, 110 (6th Cir. 1990)). 7 12cv01424 CAB(RBB) 1 basis of affidavits.'" 2 708 F.2d 492, 495 (9th Cir. 1983) (quoting Hoffman Beer Drivers & 3 Salesman's Local Union No. 888, 536 F.2d 1268, 1277 (9th Cir. 4 1976)). 5 examine witnesses and declarants. 6 Stanislaus, No. 1:08-CV-00856 OWW GSA, 2010 WL 3733843, at *5 (E.D. 7 Cal. Sept. 16, 2010). 8 finding of contempt are uncontroverted, a full evidentiary hearing 9 is not essential to due process and the trial court may treat the 10 Pennwalt Corp. v. Durland-Wayland, Inc., The responding party may present live testimony and crossSee Rodriguez v. Cnty. of If "affidavits offered in support of a facts set forth in the uncontroverted affidavits as true." Id. 11 "'Civil contempt . . . consists of a party's disobedience to a 12 specific and definite court order by failure to take all reasonable 13 steps within the party's power to comply." 14 v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006) (quoting In re 15 Dual–Deck Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th 16 Cir. 1993)). 17 authorizes district courts to impose a wide range of sanctions, 18 including contempt, on a party that fails to comply with a 19 discovery order. 20 should not be used where there is uncertainty." 21 Black & Decker (U.S.) Inc., 151 F.R.D. 11, 15 (D. R.I. 1993). 22 "'Civil contempt is a refusal to do an act the court has 23 ordered for the benefit of a party; the sentence is remedial. 24 Criminal contempt is a completed act of disobedience; the sentence 25 is punitive to vindicate the authority of the court." 26 Ward, 100 F.3d 653, 655 (9th Cir. 1996) (quoting In re Sequoia Auto 27 Brokers Ltd., 827 F.2d 1281, 1283 n. 1 (9th Cir. 1987)). 28 Ninth Circuit, a contempt order is for civil contempt if the Reno Air Racing Ass'n Rule 37(b) of the Federal Rules of Civil Procedure Fed. R. Civ. P. 37(b)(2)(A). 8 "Contempt power Sunbeam Corp. v. Bingman v. In the 12cv01424 CAB(RBB) 1 sanction coerces compliance with a court order or compensates the 2 injured party for losses sustained. 3 .V. v. KXD Tech., Inc., 539 F.3d 1039, 1044 (9th Cir. 2008). 4 Koninklijke Philips Elecs., N "The party alleging civil contempt must demonstrate that the 5 alleged contemnor violated the court's order by 'clear and 6 convincing evidence,' not merely a preponderance of the evidence." 7 In re Dual–Deck Cassette Recorder Antitrust Litig., 10 F.3d at 695 8 (citing Vertex Distrib., Inc. v. Falcon Foam Plastics, Inc., 689 9 F.2d 885, 889 (9th Cir. 1982)). Therefore, a court may impose a 10 civil contempt sanction only if there is clear and convincing 11 evidence that "(1) the contemnor violated a court order, (2) the 12 noncompliance was more than technical or de minimis (substantial 13 compliance is not punishable as contempt), and (3) the contemnor's 14 conduct was not the product of a good faith or reasonable 15 interpretation of the violated order." 16 Moore's Federal Practice § 37.51[7][b], at 37–109 (3rd ed. 2013) 17 (footnotes omitted); see United States v. Bright, 596 F.3d 683, 694 18 (9th Cir. 2010) (quoting Labor/Cmty. Strategy Ctr. v. L.A. Cnty. 19 Metro. Transp. Auth., 564 F.3d 1115, 1123 (9th Cir. 2009)). 20 doubts as to whether these requirements have been met in a 21 particular case must be resolved in favor of the party accused of 22 the civil contempt." 23 Practice § 37.51[7][b], at 37–109 (footnote omitted). 24 25 "Any 7 James Wm. Moore et al., Moore's Federal III. A. 7 James Wm. Moore et al., DISCUSSION The Joint Motion to File Documents Under Seal 26 With the Motion for Contempt, Plaintiff and Defendant Cricket 27 filed a "Joint Motion to Seal Exhibits 5-9 to Van Loon Declaration 28 in Support of Motion to Hold Defendants Chris Young Choi, Yongsik 9 12cv01424 CAB(RBB) 1 'Stanley' Park, and Actscom USA, Inc. in Contempt for Failure to 2 Comply with Judge Major's March 17, 2014 Order [ECF No. 111]," (the 3 "Joint Motion to Seal Exhibits") and several proposed sealed 4 exhibits [ECF Nos. 112-116]. 5 under seal confidential "hardware and software release notes 6 involving the Cricket A100, A200, A210, A300, and A310 cell phone 7 models." 8 protective order in this case allow either party to request to file 9 documents under seal. Cricket and M Seven request to file (Joint Mot. Seal Exs. 2, ECF No. 111.) The terms of the (See Order Granting Mot. Stipulated 10 Protective Order 1-2, ECF No. 49.) 11 Exhibits [ECF No. 111] is GRANTED. 12 B. The Joint Motion to Seal The Parties' Supplemental Filings 13 Plaintiff filed a Reply in support of its motion and two 14 separate documents containing objections to the declarations of 15 Park and Choi that accompanied the Defendants' Opposition [ECF Nos. 16 131, 132, 133]. 17 147, 148]. 18 Defendants responded to the objections [ECF Nos. Much of Plaintiff's Reply addresses statements made by Park 19 and Choi in their declarations. 20 M Seven references its evidentiary objections to Park's declaration 21 and argues that his declaration should be disregarded. 22 n.1.) 23 24 25 26 27 (See Reply 8-12, ECF No. 131.) (Id. at 12 Park fails to set forth foundational facts and any basis for making statements regarding mobile phone development or business practices of Actscom Korea, Appeal System or BNSoft, or showing that he has sufficient knowledge to testify as to the technical source code analysis he undertook, and only presents impermissible hearsay from a former Actscom Korea engineer. (Id.) 28 10 12cv01424 CAB(RBB) 1 Under the local rules, "No reply memorandum will exceed ten 2 (10) pages without leave of the judge." S.D. Cal. Civ. R. 7.1(h). 3 M Seven's reply brief is ten pages in length, and Plaintiff did not 4 seek leave from the Court to file a brief in excess of ten pages. 5 (See Reply 4-13, ECF No. 131.) 6 ordered to STRIKE M Seven's "Evidentiary Objections to Chris Choi's 7 Declaration in Support of Opposition [ECF No. 132]" and 8 "Evidentiary Objections to Yongsik 'Stanley' Park's Declaration in 9 Support of Opposition [ECF No. 133]" from the docket. Accordingly, the Clerk of Court is The 10 corresponding "Response to M7's Evidentiary Objections to 11 Declaration of Yongsik 'Stanley' Park [ECF No. 147]" and "Response 12 to M7's Evidentiary Objections to Declarations of Chris Choi [ECF 13 No. 148]" are also STRICKEN from the docket. 14 Similarly, because Defendants did not seek leave to file a 15 surreply, the Clerk of Court is also ordered to STRIKE the Choi 16 Defendants' "Objections to Evidence Submitted with M7's Reply in 17 Support of Motion to Hold Defendants in Contempt for Failure to 18 Comply with Judge Major's March 17, 2014 Order [ECF No. 144]" and 19 the "Response to Objections to Evidence Submitted with M7's Reply 20 [ECF No. 152]." 21 deadlines for opposition and reply only).) 22 C. 23 (See Mins., May 14, 2014, ECF No. 119 (providing Judge Major's Order As noted, Judge Major granted in part and denied in part 24 Plaintiff's Motion to Compel. 25 Compel 9, ECF No. 71.) 26 show that they made a reasonable effort to obtain the source code 27 for the Crickett model A200, A210, A300, and A310 cell phones. 28 (Id. at 6-8.) (See Order Granting Part Pl.'s Mot. She held that the Choi Defendants failed to 11 12cv01424 CAB(RBB) 1 Defendants' failure to make any effort to learn what source code, if any, ACTScom Korea has in its possession and/or to verify the amount and location of ACTScom Korea's ESI, under cuts Defendants' argument that the source code is not readily available. Defendants must make a reasonable effort to obtain the source code. 2 3 4 For the reasons set forth above, Plaintiff's motion is GRANTED IN PART and Defendants must produce the source code for phones A200, A210, A300, and A310. If Defendants are unable to obtain the source code for any of the phones, each Defendant must provide a declaration stating whether the code for each phone was ever in Defendant's possession, custody, or control and, if it was, what happened to the code. Each defendant's declaration also must identify what efforts were made to locate the code and the results of those efforts. Defendant Choi's declaration must include his efforts to obtain the source code from ACTScom Korea, Appeal System, and BNSoft. Defendants Park and ACTScom USA must include their efforts to obtain the source code from BNSoft. 5 6 7 8 9 10 11 12 (Id. at 8 (citations omitted).) 13 Motion to Compel was denied because the Defendants had already 14 produced the code. 15 D. 16 As to the A100 source code, the (Id. at 5, 8-9.) The Defendants' Declarations On April 11, 2014, the Choi Defendants filed declarations in 17 response to Judge Major's order [ECF Nos. 103, 104]. 18 explained that subsequent to the discovery ruling, Defendants gave 19 Plaintiff copies of the A210, A300, and A310 source code. 20 Choi 2-3, ECF No. 103; Decl. Park 2-3, ECF No. 104.) 21 that a former associate at Actscom Korea, Henry Jeong, was able to 22 procure the source code from a company computer. 23 ECF No. 103; Decl. Park 2, ECF No. 104.) 24 the relevant code because "when he and other engineers were laid 25 off by Actscom Korea early last year, they copied certain major 26 files (including source code related to prior projects) onto a 27 computer at Actscom Korea, and saved the files to a certain folder There, they (Decl. They stated (Decl. Choi 2-3, Jeong knew where to find 28 12 12cv01424 CAB(RBB) 1 within the computer." 2 ECF No. 104.) 3 (Decl. Choi 3, ECF No. 103; Decl. Park 2, Jeong was unable to find the A200 source code, however. 4 (Decl. Choi 3, ECF No. 103; Decl. Park 3, ECF No. 104.) 5 Park both stated, "I have never had a copy of the A200 source code 6 in my possession, custody or control, and Actscom USA also has 7 never had a copy of the A200 source code in its possession, custody 8 or control." 9 104.) 10 11 12 13 14 15 Choi and (Decl. Choi 3, ECF No. 103; Decl. Park 3, ECF No. The Choi Defendants provided the following account of what may have happened to the A200 source code: [O]ne possible explanation is that the A200 was not kept because it was superseded by the A210. In particular, I am informed and believe that the source code for the A210 device is virtually the same as the source code for the A200 device. The A210 was largely a cosmetic update to the A200. The two phones have the same hardware, the same general source code, and the same dimensions. The only major differences between the phones are that the housing was slightly updated, and the color was updated. In addition, any bugs in the software were likely fixed. 16 17 18 (Decl. Choi 3-4, ECF No. 103; Decl. Park 3, ECF No. 104.) In addition to attempting to obtain the code from Actscom 19 Korea and Jeong, Defendants also contacted the subcontractors 20 responsible for creating the code, Appeal System and BNSoft. 21 (Decl. Choi 4, ECF No. 103; Decl. Park 3, ECF No. 104.) 22 attempts were unsuccessful. 23 Park 4-5, ECF No. 104.) 24 officer of Appeal System and sent letters to the company and its 25 attorney. 26 The e-mail was returned as nondeliverable, and no response was 27 received to either letter. 28 4, ECF No. 104.) These (Decl. Choi 4-5, ECF No. 103; Decl. Defendants e-mailed the chief executive (Decl. Choi 4, ECF No. 103; Decl. Park 4, ECF No. 104.) (Decl. Choi 4, ECF No. 103; Decl. Park Defendants explained that they did not anticipate 13 12cv01424 CAB(RBB) 1 a response from Appeal System because Actscom Korea was suing the 2 company. 3 Further, Choi and Park have been informed that Appeal System was 4 "no longer a viable, operating business." 5 103; Decl. Park 4, ECF No. 104.) 6 (Decl. Choi 4, ECF No. 103; Decl. Park 4, ECF No. 104.) (Decl. Choi 4, ECF No. As to BNSoft, Defendants sent a letter to the company and e- 7 mailed its vice president. 8 4, ECF No. 104.) 9 that "he looked for the A300 and A310 code, but could not find it." (Decl. Choi 5, ECF No. 103; Decl. Park A BNSoft employee responded to the e-mail saying 10 (Decl. Choi 5, ECF No. 103 (attaching e-mail response); Decl. Park 11 4, ECF No. 104 (attaching e-mail response).) 12 concluded, "Because these projects are at least four years old, it 13 is not surprising to me that BNSoft could not find any copies of 14 the source code." 15 No. 104.) 16 E. 17 Each Defendant (Decl. Choi 5, ECF No. 103; Decl. Park 4-5, ECF The A100 Source Code As noted, Judge Major denied the Motion to Compel production 18 of the A100 source code because the Choi Defendants had already 19 produced it. 20 71.) 21 compared the source code provided by Defendants with the source 22 code found in a commercially released A100 phone. 23 Attach. #1 Mem. P. & A. 9 n.1, ECF No. 110 (citing id. Attach. #4 24 Decl. Stillerman at 6).) 25 provided is different from, and an earlier version of, the code 26 found in the phone he examined. 27 compel Defendants to produce the source code for the commercially 28 released A100 phone. (See Order Granting Part Pl.'s Mot. Compel 8, ECF No. M Seven now contends that its expert, Robert Stillerman, (Mot. Contempt Stillerman determined that the code (Id.) Plaintiff asks the Court to (Id.) 14 12cv01424 CAB(RBB) 1 In the Opposition, the Choi Defendants argue that the A100 2 source code "was not the subject of Judge Major's order." 3 6, ECF No. 125.) 4 provided may differ from the source code found in the commercially 5 released phone that Stillerman examined. 6 however, maintain that any difference is immaterial because both 7 versions are "maintenance releases" and thus are among several 8 final versions of the code. (Opp'n They admit that the version of source code (Id. at 14.) Defendants, (Id.)4 9 In the Reply, M Seven insists that the evidence suggests that 10 Defendants had possession of multiple final versions of the source 11 code. 12 Attach. #5 Decl. Park at 5-6).) 13 must provide each version of the source code or an explanatory 14 declaration for each. 15 (Reply 8, ECF No. 131 (citing Opp'n 14, ECF No. 125; id. Plaintiff urges that Defendants (Id. at 10.) In effect, Plaintiff seeks reconsideration of Judge Major's 16 order based on the recent opinion of its expert. 17 Contempt Attach. #1 Mem. P. & A. 9 n.1, ECF No. 110.) 18 M Seven did not file a motion for reconsideration of the ruling, it 19 argues that "the Choi Defendants should be compelled to produce a 20 complete, undoctored version of A100 source code as well, including 21 the commercially released version." 22 under Rules 59 and 60 of the Federal Rules of Civil Procedure, 23 motions for reconsideration must be brought "within twenty-eight 24 (28) days after the entry of the ruling, order or judgment sought 25 to be reconsidered." (Id.) (See Mot. Although But except as permitted S.D. Cal. Civ. R. 7.1(i)(2). M Seven's 26 27 28 4 "A maintenance release is a version of code released after the phone is initially manufactured, for use in subsequent production runs (for example, the updated code may fix certain bugs)." (Id. at 13.) 15 12cv01424 CAB(RBB) 1 Motion for Contempt was filed on May 11, 2014; even this motion was 2 brought more than twenty-eight days after Judge Major's March 17, 3 2014 Order. 4 its request for reconsideration should be extended. 5 Mot. Contempt Attach. #1 Mem. P. & A. 9 n.1, ECF No. 110.) 6 basis, Plaintiff's request for the source code for the commercially 7 released A100 phone or, alternatively, for reconsideration of Judge 8 Major's order as to the A100 source code is DENIED. 9 F. 10 Plaintiff does not argue that the deadline for filing (See generally On this The A210, A300, and A310 Source Code Next, M Seven contends that the A210, A300, and A310 source 11 code that was produced is deficient for several reasons. (Mot. 12 Contempt Attach. #1 Mem. P. & A. 8, 14-15, ECF No. 110.) First, 13 like the A100 source code, Plaintiff insists that the code provided 14 is different from the code found in the A210, A300, and A310 cell 15 phones that Stillerman examined. 16 #4 Decl. Stillerman at 6-7).) 17 source code produced was only "a single pre-release version of the 18 code," and "insufficient to confirm that the full functionality of 19 the commercially-released versions of the code." 20 (citing id. Attach. #4 Decl. Stillerman at 4, 7).) 21 (Id. at 8, 14 (citing id. Attach. Stillerman determined that the (Id. at 8-9 M Seven also alleges that Defendants' production is deficient 22 because they only produced one version of the source code; yet, 23 numerous versions of the code existed for each model of phone. 24 (See Mot. Contempt Attach. #1 Mem. P. & A. 9, 14-15, ECF No. 110.) 25 It maintains that "[t]he Court's Order specifically applies to all 26 the 'various versions of the source code.'" 27 Order Granting Part Pl.'s Mot. Compel 3, ECF No. 71).) 28 version of code contained in the cell phone models, Plaintiff urges 16 (Id. at 13 (quoting For each 12cv01424 CAB(RBB) 1 that Defendants must provide either the source code or an 2 explanatory declaration. 3 that "[g]iven that the source code was a key part of the Choi 4 Defendants' business, it is implausible that the final version of 5 the source code was never in their possession." 6 Plaintiff speculates that Defendants may have destroyed the source 7 code. 8 9 (Id. at 14-15.) Further, M Seven argues (Id. at 15-16.) (Id. at 16.) M Seven claims that these deficiencies are clear and convincing evidence that the Choi Defendants violated Judge Major's (Id. at 13.) Plaintiff additionally asserts that 10 discovery order. 11 Defendants have not substantially complied with the ruling. 12 at 17-18.) 13 not based "on a good faith interpretation of this Court's ruling" 14 because Judge Major's order is "simple, explicit, and unambiguous." 15 (Id. at 18.) 16 (Id. Finally, M Seven contends that Defendants' conduct was In the Opposition, the Choi Defendants maintain that they have 17 reasonably interpreted and fully complied with the order. (Opp'n 18 8, ECF No. 125.) 19 all versions of the source code, just a final version for each 20 phone model. 21 Defendants were required to produce every historical version of 22 source code, even including old, superseded versions not actually 23 used in the phones." 24 insist, and simply orders that "'the source code'" be produced. 25 (Id. (citing Order Granting Part Pl.'s Mot. Compel 8, ECF No. 71).) 26 Plaintiff submits that the order required production of "'various 27 versions of source code,'" but Defendants counter that the portion 28 of the order upon which M Seven relies is from the factual They argue that they were not required to produce (Id.) "[T]he order does not specifically state that (Id.) Judge Major's holding is vague, they 17 12cv01424 CAB(RBB) 1 background, not the holding. 2 Attach. #1 Mem. P. & A. 1, 10, ECF No. 110; Order Granting Part 3 Pl.'s Mot. Compel 3, ECF No. 71).) 4 (Id. at 8-9 (citing Mot. Contempt The Choi Defendants assert that they have complied with Judge 5 Major's order because they produced every version of the source 6 code that they possessed. 7 Decl. Choi at 4; id. Attach. #5 Decl. Park at 4).) 8 provided source code for the A210, A300, and A310 models, 9 Defendants argue that they were not required to provide (Id. at 9-10 (citing id. Attach. #1 10 declarations for those phones. 11 claim that Defendants destroyed source code is "categorically 12 false" and "pure speculation." 13 insufficient to satisfy M7's burden to show contempt." 14 (citing NLRB v. S.F. Typographical Union No. 21, 465 F.2d 53, 58 15 (9th Cir. 1972); FTC v. Lights of Am. Inc., SACV 10-1333 JVS, 2012 16 WL 695008, at *4 (C.D. Cal. Jan. 20, 2012)).) 17 (Id.) Because they They insist that Plaintiff's (Id. at 11.) "Such speculation is (Id. According to the Choi Defendants, Cricket contracted with 18 Actscom Korea to create the source code, which in turn 19 subcontracted the job to Appeal System for the A100, A200, and A210 20 phones and to BNSoft for A300 and A310 phones. 21 Attach. #1 Decl. Choi at 2; id. Attach. #5 Decl. Park at 2).) 22 state that Choi, Park, and Actscom USA, Inc. were not involved in 23 the creation of the source code. 24 Choi at 2-3; id. Attach. #5 Decl. Park at 2-3).) 25 System and BNSoft may have possessed multiple versions of the 26 source code, only binary code and the final versions of the code 27 were sent to Actscom Korea. 28 Decl. Choi at 3; id. Attach. #5 Decl. Park at 3).) (Id. (citing id. They (Id. (citing id. Attach. #1 Decl. While Appeal (Id. at 11-12 (citing id. Attach. #1 18 12cv01424 CAB(RBB) 1 The Choi Defendants also contend that M Seven's expert erred 2 when he opined that Defendants did not produce a final version of 3 the source code. 4 state that the version they produced "is actually more current than 5 the version of code used in the phone analyzed by Stillerman." 6 (Id.) 7 phone -- version A210_CK_D1.35 -- was the last maintenance release. 8 (Id. (citing id. Attach. 9 apparently not seeing that the correct version number (D1.35) was (Id. at 13.) As to the A210 code, Defendants They explain that the source code produced for the A210 "Here, Stillerman's mistake was in 10 indicated in the row immediately below the version number he relied 11 on (C1.20)." 12 (Id. (citing id. Attach. #5 Decl. Park at 5).) For the A300 and A310 phones, Defendants assert that the code 13 provided is the "exact same version" found in the phone examined by 14 Stillerman. 15 Choi Defendants insist, "It appears that Stillerman's mistake was 16 in looking at the version number of the non-proprietary 'AMSS' code 17 (AMSS stands for Advanced Mobile Subscriber Software, and is a 18 Qualcomm product), rather than the version number of the complete 19 source code that was built on top of the AMSS code." 20 id. Attach. #5 Decl. Park Exs. 2-5).) 21 Defendants maintain that the Motion for Contempt should be denied. 22 In the Reply, Plaintiff repeats that Judge Major ordered 23 production of all versions of the source code because the document 24 requests asked for "all prior and current versions of the code". 25 (Reply 5-6, ECF No. 131 (citing Mot. Compel Attach. #4 Ex. G at 85, 26 ECF No. 59; id. Ex. H at 112; id. Ex. I at 11).) 27 that Judge Major "essentially mirror[ed] M7's requested relief to 28 compel its discovery request." (Id. (citing id. Attach. #5 Decl. Park at 4).) (Id. (citing For these reasons, the Choi (Id. at 6.) 19 The M Seven insists According to 12cv01424 CAB(RBB) 1 Plaintiff, the ruling is not vague or ambiguous because "a 2 defendant cannot create ambiguity or manipulate the meaning of an 3 order to compel by divorcing it from the discovery request that 4 gave rise to it." 5 Inc., 629 F. Supp. 2d 972, 975-76 (N.D. Cal. 2008)).) (Id. at 6-7 (citing Keithley v. Homestore.com 6 M Seven urges that the Choi Defendants had possession of 7 multiple "final" versions of the source code, which they failed to 8 produce. 9 Opp'n 13-14, ECF No. 125; id. Attach. #5 Decl. Park at 5).) (Id. at 9-10 (citing id. Attach. #1 Decl. Van Loon at 2; 10 Plaintiff rebuts Defendants' argument that they only had possession 11 of binary code because "the Choi Defendants would not have been 12 able to view or edit binary code, as their emails indicate they are 13 doing." 14 System and BNSoft deleted the A300 and A310 source code, Choi and 15 Park "had a duty to preserve" the deleted code because they 16 controlled those companies. (Id.) Finally, M Seven asserts that to the extent Appeal (Id. at 13.) 17 First, the Court must consider whether there is a specific and 18 definite order requiring the production of all versions of the code 19 for each cell phone model. 20 at 694; Reno Air Racing Ass'n v. McCord, 452 F.3d at 1130. 21 Major's holding was that "Defendants must produce the source code 22 for phones A200, A210, A300, and A310." 23 Pl.'s Mot. Compel 8, ECF No. 71.) 24 explicitly refer to historical and final versions of the code for 25 each of the subject phones. 26 See United States v. Bright, 596 F.3d Judge (See Order Granting Part This language does not M Seven's assertion that the order "specifically applies to 27 all the 'various versions of the source code'" is inaccurate. 28 Mot. Contempt Attach. #1 Mem. P. & A. 13, ECF No. 110 (citing Order 20 (See 12cv01424 CAB(RBB) 1 Granting Part Pl.'s Mot. Compel 3, ECF No. 71).) 2 material upon which Plaintiff relies is taken from the procedural 3 background for the order. 4 February 3, 2014, counsel for all parties jointly contacted the 5 Court regarding a discovery dispute brought by Plaintiff concerning 6 Defendants and their objections to Plaintiff's discovery requests 7 for various versions of source code." 8 Mot. Compel 1, 3, ECF No. 71.)5 9 versions" of code appears to allude to different codes for 10 11 The quoted In context, Judge Major wrote, "On (Order Granting Part Pl.'s The reference to "various different phones. Other portions of Judge Major's order, at a minimum, undermine 12 M Seven's argument that all versions of source code were to be 13 produced. 14 to Compel, Defendants represented that the only source code in 15 their possession was "a single copy of the A100 source code." 16 (Opp'n Mot. Compel 8, ECF No. 66; see id. at 5, 9, 11-12, 15.) 17 Judge Major found the production of that code sufficient. 18 Order Granting Part Pl.'s Mot. Compel 5, ECF No. 71 ("Defendants 19 assert, and Plaintiff does not dispute, that Defendants possess and 20 have made available to Plaintiff the source code for phone A100."); 21 id. at 8 ("Because Defendants produced the source code for phone 22 A100 prior to the filing of the motion to compel, the Court is 23 granting in part and denying part Plaintiff's motion.").) In the February 24, 2014 Opposition to M Seven's Motion (See 24 5 25 26 27 28 The Court notes that this is not the first time M Seven's counsel has made inaccurate representations to the Court. (See Order Granting Part Dispositive Mot. 7, ECF No. 137 ("In an attempt to distinguish . . . this case from the Choi Korean Action, plaintiff inaccurately contends . . . . Plaintiff also inaccurately contends . . . .").) Counsel is presumably familiar with an attorney's duties to the Court, particularly the duty of candor as set out by California Rule of Professional Conduct 5-200 and the California Business and Professions Code. 21 12cv01424 CAB(RBB) 1 Accordingly, Defendants reasonably interpreted the discovery order 2 and produced a single version of the A210, A300, and A310 code. 3 Even if Defendants interpreted the discovery order too narrowly, 4 M Seven cannot complain because the Defendants produced source code 5 in their possession, custody, and control. 6 125 ("Defendants produced every version [of source code] they had, 7 and would have produced older versions if they were available.").) (See Opp'n 9, ECF No. 8 Relying on Keithley, 629 F. Supp. 2d at 975-76, Plaintiff 9 insists that "a defendant cannot create ambiguity or manipulate the 10 meaning of an order to compel by divorcing it from the discovery 11 request that gave rise to it." 12 case, the court granted a motion to compel and ordered "'production 13 of website documents responsive to requests that do not call for 14 source code'; included among the requests that do not call for 15 source code was request six . . . ." 16 976. 17 ambiguous . . . does not explain why defendants did not believe 18 that request six, which explicitly lists 'reports,' did not cover 19 reports." 20 party had been directed to provide all documents responsive to 21 discovery requests that did not call for source code, regardless of 22 whether the court discussed each, specific type of document at the 23 hearing. 24 compliance with specific document requests or order production of 25 prior versions of source code. 26 Compel 8, ECF No. 71 ("Defendants must produce the source code for 27 phones A200, A210, A300, and A310.").) (Reply 5-6, ECF No. 131.) In that Keithley, 629 F. Supp. 2d at "[D]efendants' contention that request six was so vague and Id. The reviewing court determined that the responding Id. at 975-76. Here, Judge Major did not order (See Order Granting Part Pl.'s Mot. Keithley is not this case. 28 22 12cv01424 CAB(RBB) 1 Because multiple versions of the code existed for each phone, 2 the Court must next determine which version of the source code the 3 Defendants needed to produce in order to substantially comply with 4 Judge Major's order. 5 Opposition to Plaintiff's Motion to Compel nor the discovery order 6 make any reference to whether the A100 code that was produced was a 7 pre-release version or a version of source code contained in a 8 commercially released phone. 9 21, ECF No. 66; Order Granting Part Pl.'s Mot. Compel 1-9, ECF No. See Bright, 596 F.3d at 694. Neither the (See generally Opp'n Mot. Compel 5- 10 71.) 11 production of source code contained in a commercially released 12 phone. 13 commercially released phone, they have substantially complied with 14 the order. 15 The Court construes Judge Major's order as requiring the Thus, to the extent Defendants produced code used in a See Bright, 596 F.3d at 694. In the Motion for Contempt, Plaintiff initially argued that 16 the A200, A300, and A310 code provided by the Choi Defendants was a 17 pre-release version of the code. 18 & A. 17, ECF No. 110.) 19 oath, however, that (1) M Seven's expert misread the code and (2) 20 the source code provided for the A210, A300, and A310 phones was 21 contained in commercially released phones. 22 125; id. Attach. #5 Decl. Park at 4-5.) 23 the issue in the Reply. 24 has failed to prove by clear and convincing evidence its claim that 25 Plaintiff was provided early versions of source code not found in 26 the commercially released phones. 27 Recorder Antitrust Litig., 10 F.3d at 695. (Mot. Contempt Attach. #1 Mem. P. In the Opposition, Defendants explain under (Opp'n 12-14, ECF No. Plaintiff does not address (See Reply 5-10, ECF No. 131.) M Seven See In re Dual-Deck Cassette 28 23 12cv01424 CAB(RBB) 1 In sum, the discovery order does not preclude more than one 2 reasonable interpretation of its scope, a factor that weighs 3 against finding the Defendants in contempt. 4 Ass'n, 452 F.3d at 1132 ("'The judicial contempt power is a potent 5 weapon. 6 understood, it can be a deadly one.'") (quoting Int'l 7 Longshoremen's Ass'n. v. Phila. Marine Trade Ass'n, 389 U.S. 64, 76 8 (1967)); Vertex Distrib., Inc. v. Falcon Foam Plastics, Inc., 689 9 F.2d at 889 ("Where the language of a consent judgment is too See Reno Air Racing When it is founded upon a decree too vague to be 10 vague, it cannot be enforced; to do so would be an invalid exercise 11 of judicial authority.") (citations omitted). 12 produced the source code for the A210, A300, and A310 phones. 13 reasonably interpreted and substantially complied with Judge 14 Major's order. 15 reconsideration of the discovery order. 16 Motion to Hold Defendants Chris Young Choi, Yongsik "Stanley" Park, 17 and Actscom USA, Inc. in Contempt [ECF No. 110]. 18 reasons, the Motion for Contempt [ECF No. 110] as to A210, A300, 19 and A310 phones is DENIED. 20 G. 21 The Defendants They Plaintiff did not seek clarification or Instead, M Seven filed a For all these The A200 Source Code In her order, Judge Major states, "If Defendants are unable to 22 obtain the source code for any of the phones, each Defendant must 23 provide a declaration stating whether the code for each phone was 24 ever in Defendant's possession, custody, or control and, if it was, 25 what happened to the code." 26 8, ECF No. 71.) 27 Defendants submitted declarations explaining why they were unable 28 to obtain and produce a copy of the source code. (Order Granting Part Pl.'s Mot. Compel The A200 code was not produced, so the Choi 24 (See Mot. 12cv01424 CAB(RBB) 1 Contempt Attach. #1 Mem. P. & A. 14, ECF No. 110; Opp'n 15, ECF No. 2 125.) 3 because they do not account for every version of the A200 code. 4 (Mot. Contempt Attach. #1 Mem. P. & A. 9-10, 15, ECF No. 110.) 5 Moreover, they do not contain all the information required. 6 at 9-11, 15-17.) Plaintiff urges that Defendants' declarations are deficient (Id. 7 M Seven insists that the Choi Defendants fail to explain why 8 Jeong and others copied the computer files, as well as where they 9 found the files. (Id. at 10, 16.) "Additionally, Choi and Park's 10 descriptions of the measures undertaken to secure the source code 11 from third parties offer no explanation as to why it is that the 12 source code has gone missing." 13 this lack of explanation suggests that the code may have been 14 destroyed. (Id. at 10.) Plaintiff argues that (Id. at 16.) 15 According to M Seven, the Defendants only sent a letter and an 16 e-mail to obtain the code; these efforts are insufficient to comply 17 with the discovery order. 18 "[a]lthough BNSoft did actually respond that they did not find the 19 code, Choi and Park declined to ask what types of searches were 20 conducted, or where BNSoft actually looked." 21 Plaintiff also asserts that it is implausible that Defendants never 22 possessed the final version of the code. 23 reasons, Plaintiff maintains that the Defendants should be found in 24 contempt. 25 (Id. at 10-11, 16-17.) Further, (Id. at 16.) (Id. at 15.) For these In the Opposition, the Choi Defendants contend that their 26 declarations are adequate because "they confirmed they never had a 27 copy of the A200 source code in their possession, custody, or 28 control." (Opp'n 15, ECF No. 125 (citing Decl. Choi 3, ECF No. 25 12cv01424 CAB(RBB) 1 103; Decl. Park 3, ECF No. 104).) 2 efforts were made to locate the A200 source code, and the results 3 of those efforts." 4 information than was required because they explained why the source 5 code may not have been kept and detailed how the A210 source code 6 was almost identical to the A200 code. 7 Park state that they had minimal contacts with Actscom Korea during 8 the relevant time period. 9 (Id.) "Second, they explained what Defendants argue that they provided more (Id.) Finally, Choi and (Id. at 16-17.) In the Reply, M Seven asserts that the Choi Defendants 10 contradict themselves because they state that they never had a copy 11 of the A200 source code, yet they also explain that a copy of the 12 code was likely sent to Actscom Korea, an entity within Park and 13 Choi's control. 14 explain, Plaintiff alleges, "'what happened to the code', 15 sufficient to be able to determine if spoliation has occurred." 16 (Id.) 17 from Actscom Korea. 18 "established facts" show that Choi was active in managing Actscom 19 Korea from 2007 to 2010. 20 (Reply 10, ECF No. 131.) Defendants fail to M Seven also contests Choi's attempts to distance himself (Id. at 11-12.) According to Plaintiff, the (Id.) Judge Major acknowledged that there was some evidence that, at 21 one time, the Choi Defendants may have had possession of the A200 22 source code. 23 No. 71.) 24 state under oath that they presently are "unable to obtain the 25 source code." 26 "I have never had a copy of the A200 source code in my possession, 27 custody or control, and Actscom USA also has never had a copy of (See Order Granting Part Pl.'s Mot. Compel 5-7, ECF She gave the Defendants the opportunity, however, to (Id. at 8.) Defendants Choi and Park both stated, 28 26 12cv01424 CAB(RBB) 1 the A200 source code in its possession, custody or control." 2 (Decl. Choi 3, ECF No. 103; Decl. Park 3, ECF No. 104.) 3 These statements are consistent with Judge Major's conclusion 4 that "the evidence presented to the Court does not establish that 5 any of the Defendants had actual possession of the requested source 6 code and failed to produce it." 7 Compel 9, ECF No. 71.) 8 evidence that the Choi Defendants had possession of the A200 source 9 code and failed to produce it. (Order Granting Part Pl.'s Mot. The Court cannot find clear and convincing See 7 James Wm. Moore et al., 10 Moore's Federal Practice § 37.51[7][b], at 37-109 ("Any doubts as 11 to whether these requirements have been met in a particular case 12 must be resolved in favor of the party accused of the civil 13 contempt.") (footnote omitted). 14 In their declarations, both Choi and Park adequately explained 15 that the A200 source code was never in their custody, possession, 16 or control. 17 104.) 18 obtain the code. 19 ECF No. 104.) 20 because Defendants did not explain why the source code files were 21 copied, where the original files were found, why the source code 22 went missing, and how BNSoft conducted its search. 23 Attach. #1 Mem. P. & A. 10, 16, ECF No. 110.) 24 information was required by the discovery order. 25 Granting Part Pl.'s Mot. Compel 8, ECF No. 71.) 26 (See Decl. Choi 3, ECF No. 103; Decl. Park 3, ECF No. Further, they sufficiently described their attempts to (See Decl. Choi 4-5, ECF No. 103; Decl. Park 3-5, Plaintiff additionally seeks a finding of contempt (Mot. Contempt Yet, none of this (See Order Judge Major also held that the Choi Defendants needed to "make 27 a reasonable effort to obtain the source code." 28 criticizes Defendants' attempts to obtain the A200 code and 27 (Id.) M Seven 12cv01424 CAB(RBB) 1 concludes that the efforts made were not reasonable. 2 Contempt Attach. #1 Mem. P. & A. 10-11, 16-17, ECF No. 110; Reply 3 13, ECF No. 131.) 4 support for its conclusion. 5 Appeal System, the entities most likely to have the code, by both 6 e-mail and letter. 7 ECF No. 104.) 8 9 (Mot. Plaintiff overstates its case and provides no Defendants contacted Actscom Korea and (Decl. Choi 3-4, ECF No. 103; Decl. Park 3-4, Plaintiff expects more, but more was not required. M Seven has failed to prove by clear and convincing evidence that the Choi Defendants' efforts were unreasonable. See L.H. v. 10 Schwarzenegger, No. S-06-2042 LKK GGH, 2007 WL 2781132, *2 (E.D. 11 Cal. Sep. 21, 2007) (citing United States ex rel Englund v. L.A. 12 Cnty., 235 F.R.D. 675 (E.D. Cal. 2006)) (explaining that the 13 reasonableness of efforts to obtain information responsive to 14 discovery requests is "determined by the size and complexity of the 15 case and the resources that a responding party has available"). 16 to the A200 source code, Defendants' declarations are sufficient, 17 and Plaintiff's motion [ECF No. 110] is DENIED. 18 As Because the Court has determined that Defendants should not be 19 found in contempt, it need not address "Defendant Cricket 20 Communications, Inc.'s Opposition to M7's Motion for Contempt and 21 Sanctions [ECF No. 127]" and "M Seven System Limited's Reply to 22 Defendant Cricket Communications, Inc.'s Opposition to Motion for 23 Contempt and Sanctions [ECF No. 135]," both of which address 24 whether the Court should impose specific types of sanctions. 25 26 IV. CONCLUSION The motion for an order to show cause why the Choi Defendants 27 shall not be held in contempt [ECF No. 110] is DENIED. 28 Motion to Seal Exhibits [ECF No. 111] is GRANTED. 28 The Joint The Clerk of 12cv01424 CAB(RBB) 1 Court is ordered to STRIKE "Evidentiary Objections to Chris Choi's 2 Declaration in Support of Opposition [ECF No. 132]," "Evidentiary 3 Objections to Yongsik 'Stanley' Park's Declaration in Support of 4 Opposition [ECF No. 133]," "Objections to Evidence Submitted with 5 M7's Reply in Support of Motion to Hold Defendants in Contempt for 6 Failure to Comply with Judge Major's March 17, 2014 Order [ECF No. 7 144]," "Response to M7's Evidentiary Objections to Declaration of 8 Yongsik 'Stanley' Park [ECF No. 147]," "Response to M7's 9 Evidentiary Objections to Declarations of Chris Choi [ECF No. 148]" 10 and "Response to Objections to Evidence Submitted with M7's Reply 11 [ECF No. 152]" from the docket. 12 13 DATE: August 11, 2014 14 _____________________________ Ruben B. Brooks United States Magistrate Judge 15 16 cc: Judge Bencivengo All parties of record 17 18 19 20 21 22 23 24 25 26 27 28 I:\Chambers Brooks\CASES\MSEVENSYSTEMS1424\OrderDenyMotReOSC.wpd 29 12cv01424 CAB(RBB)
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