Dealing with Metadata in the Non – Discovery Context

The Utah Bar Journal published an article I drafted: “Dealing with Metadata in the Non-Discovery Context.”

Metadata is truly a trap for the unwary.

Utah man accused of defrauding fiance pleads not guilty

In a bizarre set of facts, a Utah man pleads not guilty this week in federal court to charges of bank fraud, computer fraud and aggravated identity theft.

According to a federal indictment, John Bradley Egan had talked his fiancee into selling her North Salt Lake condo and starting a new life with him in Tampa, Fla., where they were to be married. Egan persuaded the woman to drive to Florida where he told her he would meet her. Instead, police say Egan drained her bank account of about $109,000 and stole his parents’ passports and Social Security cards before he vanished in June 2006.

In June 2007, federal officials were notified that Egan had been picked up in a broken-down boat in Cuba.

Egan told Cuban officials that he had tried to set sail from Mexico to Ireland when his boat broke down. Egan spent some time in Cuban jail for having a forged passport. Through a diplomatic exchange, Cuba handed Egan over to U.S. officials.

http://deseretnews.com/article/1,5143,695235189,00.html

Magistrate Paul M. Warner – Motion to Compel and Motion for Sanctions granted

CHANNEL BAKER, Plaintiff, v. SIZZLING PLATTER, INC.; SIZZLING PLATTER, L.L.C.; all entities dba Red Robin and dba Red Robin Layton; and JOHN DOES 1-5, Defendants.

Case No. 2:06cv1045

United States District Court for the District of Utah, Central Division

2007 U.S. Dist. LEXIS 90044

December 6, 2007

Magistrate Paul M. Warner

Defendant contends it has made diligent and good faith, but futile, efforts to work with Plaintiff and her counsel regarding various discovery matters. Accordingly, Defendant asked the court for an order: (1) compelling Plaintiff to respond to Defendant’s First Set of Interrogatories and First Requests for Production of Documents, (2) compelling Plaintiff to appear for a deposition at the offices of Defendant’s counsel within thirty days after service of Plaintiff’s responses to the discovery requests, and (3) sanctioning Plaintiff and her counsel by requiring them to pay Defendant’s reasonable costs and attorney fees incurred in connection with the motion.

Plaintiff did not contest the appropriateness of the court compelling responses to the discovery requests and compelling her appearance for a deposition in Utah. Accordingly, the court granted Defendant’s motion to compel and ordered Plaintiff to provide responses to the discovery requests within fifteen days. Plaintiff was also ordered to appear for a deposition in Utah within thirty days after service of her discovery responses.

Plaintiff does, however, contend that sanctions are not warranted in this matter because (1) Plaintiff’s counsel has attempted to work with Defendant’s counsel to comply with Plaintiff’s discovery obligations; (2) Plaintiff resides in Texas and the requested documents
are in storage in Utah; (3) Plaintiff’s current employer does not allow her to take leave for the purposes of being deposed; and (4) Plaintiff offered to appear for a deposition in Texas, which was refused by Defendants.

Regarding sanctions, the court held:

“The court has determined that Plaintiff’s excuses are entirely without merit. Plaintiff chose to sue Defendant in this forum. The fact that she now lives in Texas is of no moment to the court. Plaintiff has an obligation to cooperate in discovery. It is her responsibility, as the plaintiff in this matter, to aid her counsel in moving this case forward. She has utterly failed to do so, and the court concludes that sanctions are appropriate.” The sanctions to be issued by the court will consist of defendant’s attorney fees incurred in bringing defendant’s motion to compel.

So who is actually going to pay the sanctions?

“While the court finds that Plaintiff’s counsel could have been more diligent in obtaining the requested information from Plaintiff, the court concludes that it would not be appropriate to require Plaintiff’s counsel to pay the attorney fee award. Instead, Plaintiff shall be responsible for paying the award.”

Judge Ted Stewart – Motion to Intervene denied

HERRIMAN CITY, a municipality, et al., Plaintiffs, vs. SHERRIE SWENSEN, as
Salt Lake County Clerk; and GARY R. HERBERT, as Lieutenant Governor of the
State of Utah, Defendants.

Case No. 2:07-CV-711 TS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH,
CENTRAL DIVISION

2007 U.S. Dist. LEXIS 88177

November 30, 2007

This case concerns Plaintiffs’ constitutional challenge to a state statutory scheme which establishes the procedure for the creation of a new school district. The Utah Attorney General’s office represented the State of Utah (through its representative Gary Hebert, Lieutenant Governor) and is defending the constitutionality of the relevant statutes.

The Proposed Intervenors are parties to an Interlocal Agreement established for the purpose of creating an East Side School District. The Court previously denied Plaintiffs’ Motion for Permanent Injunction and the election on the issue of whether or not to create the East Side School District proceeded as scheduled. The Proposed Intervenors sought to intervene in this action as a matter of right pursuant to Fed.R.Civ.P. 24(a), arguing that they have a significant and protectible interest in the matter which is not adequately represented by the current parties. Plaintiffs opposed the intervention.

In short, the Judge ruled: “their [the Proposed Intervenors’ and the State’s] ultimate interests in defending the constitutionality of the state statute are aligned. Because of this alignment of interests in upholding the constitutionality of the statutory scheme, the Court . . . finds that representation in this matter is adequate. Therefore, the Proposed Intervenors are not entitled to intervene as a matter of right and the Court will deny the Motion.”

Judge Dee Benson – Motion to Recuse denied

BRYAN L. TRAVIS, Plaintiff, vs. PARK CITY MUNICIPAL CORPORATION, et al., Defendants.

Case No. 2:05-CV-269

United States District Court for the District of Utah, Central Division

2007 U.S. Dist. LEXIS 86691

November 21, 2007

Plaintiff filed a motion to remove both Judge Dee Benson and Magistrate Judge David Nuffer from the case.

Title 28 U.S.C. § 455(a) provides that a federal judge must recuse himself “in any proceeding in which his impartiality might be reasonably questioned.” In applying this standard, the Tenth Circuit looks to determine “whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge’s impartiality.” United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992). “The inquiry is limited to outward manifestations and reasonable inferences drawn therefrom.” United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993).

Plaintiff’s evidence for bias consisted generally of several motions that either Judge Benson and/or Judge Nuffer had ruled in Defendant’s favor. However, Judge Benson holds that “an adverse ruling is not sufficient evidence of bias to satisfy the requirements for disqualification.”

“Mr. Travis provides no facts to support his allegations that Judge Benson and Judge Nuffer have a personal bias or prejudice against him. Rather, he makes cursory and unsubstantiated claims that Judge Benson and Judge Nuffer have worked against him in an effort to deny him justice.”

Motion to Recuse denied.

Judge Dale A. Kimball – Motion for New Trial Granted

UNITED STATES OF AMERICA, Plaintiff, vs. KERRY DEAN BENALLY, Defendant.

Case No. 2:07CR256 DAK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

2007 U.S. Dist. LEXIS 85620

November 20, 2007

Judge Dale A. Kimball

Criminal trial was held on October 9-10, 2007. The jury returned a verdict of guilty on the afternoon of October 10, 2007. On October 11, 2007, counsel for defendant was contacted by a juror who expressed concern regarding racially prejudicial statements made by two jurors during the deliberations. The prejudice of these jurors had not been disclosed to the court and counsel during voir dire. Defense counsel then talked with another juror, who confirmed that such statements had been made during deliberations. Motion for New Trial was subsequently filed by defense counsel.

The court asked questions during voir dire that were specifically targeted at determining whether anyone had any prejudice toward Native Americans or held any preconceived notions about the Native American race that may impact their ability to be impartial in the case. Both jurors remained silent when these questions were asked, and did not convey to the court that they held any prejudice. Moreover, they failed to disclose to the court that they had lived on or near a reservation, and did not bring to the court’s attention that they had preconceptions about Native Americans due to their contact with that culture.

The court also stated that “had they [the jurors] answered the voir dire questions honestly and revealed their past contact with reservations and their belief that all Native Americans get drunk and get wild or violent, they would have been challenged for cause.”

“During jury deliberations, there was a conversation regarding the need to send a message back to the reservation, and one of the jurors clearly introduced information that was not in evidence. The juror considered and relied upon information contained in stories he had heard from his family members who were involved in law enforcement. These stories related directly to the type of case that was at issue in the instant case. It is unknown how many jurors relied on the information communicated by this juror.”

Based on two jurors’ failure to answer material voir dire questions honestly and the consideration of information not in evidence, Defendant’s Motion for New Trial was granted and the jury prior verdict was set aside.

Magistrate Judge Nuffer – Motion to Compel Discovery granted in part

CLEARONE COMMUNICATIONS, INC., a Utah corporation, Plaintiff, vs. ANDREW CHIANG, an individual, JUN YANG, an individual, LONNY BOWERS, an individual, WIDEBAND SOLUTIONS, INC., a Massachusetts corporation, and BIAMP SYSTEMS CORPORATION, an Oregon corporation, Defendants.

Case No: 2:07cv00037TC

United States District Court for the District of Utah, Central Division

2007 U.S. Dist. LEXIS 85617

November 20, 2007

Case assigned to Judge Tena Campbell – Opinion written by Magsitrate Judge Nuffer

The Plaintiff, ClearOne Communications, Inc., moved to compel discovery against Defendant Biamp Systems Corporation.  . In general, Biamp complained that many of the requests used the phrase “reflecting” or “relating,” which were omnibus terms that made the request overly broad.

Although Judge Nuffer counseled that “ClearOne should strive to make its requests more precise,” the use of terms such as “relating to,” “pertaining to,” or “concerning” does not necessarily make a request overly broad or unduly burdensome as long as these phrases modify a sufficiently specific type of information.

Motion to compel granted in part.

Deseret News article re. Judge Cassell

Below is a link to an article regarding Judge Cassell and his post-judgeship plans.

http://deseretnews.com/article/1,5143,695230194,00.html

Judge Paul G. Cassell to resign

U.S. District Judge Paul Cassell submitted his resignation today, saying he is stepping down to return to teaching at the University of Utah and advocating for crime victims.

http://www.sltrib.com/ci_6960452

See his resignation letter here.

Judge Dee Benson – Motion for Preliminary Injunction denied

ANDERSEN MANUFACTURING, INC., an Idaho Corporation, Plaintiff, vs. DIVERSI-TECH CORP., a Utah Corporation, ANGELA BUDGE, and PAUL BUDGE, Defendants

2007 U.S. District LEXIS 47925

Case No.: 2:05-CV-923, Consolidated with 2:07-CV-88

United States District Court for the District of Utah, Central Division

July 2, 2007 – Judge Dee Benson

Plaintiff Andersen Manufacturing, Incorporated requested a preliminary injunction preventing Diversi-Tech Corporation from continuing its alleged infringement of a patent for an extruded aluminum trailer hitch.

The Court stated that “in order to merit the grant of a motion for preliminary injunction, a movant must show: (1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction; and (4) the injunction is not adverse to the public interest.”

The Court expressed concerns regarding the validity of the Anderson patent, particularly in regard to the obviousness of the apparatus. As to the two item of uniqueness claimed by the plaintiff, the Court states: “there is support for the proposition that both a trailer hitch drop bar and aluminum alloy are well-known elements in the prior art.”

“Accordingly, Andersen’s motion for a preliminary injunction fails to meet the burden of step 1. Andersen has not shown a substantial likelihood of success on the merits due to significant questions as to the validity of the ‘412 patent.”

Watch out local music downloaders

If anyone in Provo has been illegally downloading music, watch out.

Several music companies have been granted approval by Magistrate Judge Brooke Wells to issue a subpoena to identify the names, addresses and phone numbers of four Provo internet company customers who are being sued for music piracy.

The internet company has already publicly stated they will not contest the subpoena and will fully cooperate.

See link to opinion here.

http://deseretnews.com/dn/view/1%2C1249%2C680196757%2C00.html

Candidate for President-Elect / Young Lawyers Division – Utah State Bar

I am running for President – Elect of the Young Lawyers Division of the Utah State Bar. Voting will take place June 25 – 29, 2007. Those eligible to vote include members of the Utah State Bar under 36 years of age as well as members who have been admitted to their first state bar for less than three years, regardless of age.

For those interested in seeing more detailed information regarding my platform and qualifications, see this link.

Judge Ted Stewart – Motion for Summary Judgment granted

MILNE, et al., Plaintiffs, vs. USA CYCLING INC., et al., Defendants.

Case No. 2:05-CV-675 TS

United States District Court for the District of Utah, Central Division

2007 U.S. Dist. LEXIS 42579

June 11, 2007

Judge Ted Stewart

This case stems from injuries sustained by Plaintiff Robert Milne, and fatal injuries sustained by Ben Hall, participants in the 2004 Tour of Canyonlands (“TOC”) mountain bike race, near Moab, Utah, as a result of a collision with a truck/trailer driven by Defendant Konitshek.

“Race Defendants” (USA Cycling, Inc., Cycle Cyndicate, Inc., and Eric Jean) organized, promoted, and conducted the race.

Plaintiffs stipulated that Mr. Hall and Mr. Milne knowingly and voluntarily executed a release agreement wherein they agreed to waive any and all claims, including those arising from Race Defendants’ own negligence, and release Defendants from all liability for injuries or death suffered while competing in the TOC race.

In short, the court granted the motion for summary judgment (due to the signed release) and dismissed the negligence, gross negligence, and wrongful death claims against the Race Defendants. Claims still remain against the driver of the vehicle.

Judge Paul G. Cassell – Motion for Summary Judgment granted

TRACY J. ERCANBRACK, Plaintiff, vs. WASHINGTON COUNTY, WASHINGTON COUNTY SHERIFF’S DEPARTMENT, PURGATORY CORRECTIONAL FACILITY, Defendants.

Case No. 2:06-cv-313

United States District Court for the District of Utah, Central Division

2007 U.S. Dist. LEXIS 43033

June 13, 2007

Defendants filed a Motion for Summary Judgment on March 14, 2007. Plaintiff’s response was due on April 13, 2007. On April 20, 2007, Magistrate Judge Nuffer granted an extension to file the response with the new deadline being May 18, 2007. On May 31, 2007, no response had been filed and the court ordered plaintiff’s counsel to show cause as to why it should not grant the defendants’ motion for summary judgment due to his non-opposition. The court ordered plaintiff’s counsel to respond within ten days.

Plaintiff’s counsel responded with a filing that stated (in whole):

“COMES NOW, Plaintiff, through Counsel, in opposition to Defendant’s Motion for Summery Judgment stating that there is no legal grounds upon which Defendant should be granted Summer Judgment. Plaintiff will more fully outline his opposition in Supporting Memorandum. Plaintiff would request that a hearing be set to provide Oral Argument in this matter.”

Plaintiff’s counsel filed no supporting memorandum with the above document.

In dismissing the case, Judge Cassell stated: “It is not the job of the court or of the defendants to make the plaintiff’s arguments for him, and the court deems arguments not addressed in an opposition to be abandoned.”

Case dismissed.

Judge Tena Campbell – Sentencing in child porn case

Judge Tena Campbell sentenced Charles Granere to 60 months in federal prison after previously pleading guilty to transportation of child pornography.

Granere and Matthew Duhamel were charged with transporting, receiving and possessing child pornography for the site, which court documents said featured 9- and 10-year-old girls dressed in sexually provocative and skimpy clothing.

Both men previously argued the pictures were not pornographic because the minors were clothed. However, Judge Campbell pointed out in a ruling that the U.S. Supreme Court has determined nudity was not required to constitute pornography.

Duhamel was convicted after a bench trial in February of charges of transporting, receiving and possessing child pornography. He is scheduled to be sentenced June 19, 2007.

http://deseretnews.com/dn/view/0,1249,660224588,00.html