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NE Technologies, Inc. v. Evolving Systems

September 11, 2008

NE TECHNOLOGIES, INC., PLAINTIFF,
v.
EVOLVING SYSTEMS, INC., DEFENDANT



The opinion of the court was delivered by: Tonianne J. Bongiovanni United States Magistrate Judge

OPINION AND ORDER

I. INTRODUCTION

Currently before the Court is a Motion filed by Plaintiff, NE Technologies, Inc. (hereinafter "Plaintiff"), seeking to compel Defendant Evolving Systems, Inc. (hereinafter "Defendant"), to produce certain records that Plaintiff asserts contains information about what each of the hundreds of programmers involved in Defendant's Local Number Portability (hereinafter "LNP") project did each day. In the underlying case, Plaintiff claims that licenses provided to Defendant in order to carry out the LNP project were misused in various ways. For the following reasons, the Motion to Compel is DENIED.

II. FACTUAL AND PROCEDURAL BACKGROUND

In 1997, ESI entered into a software license agreement with NET's predecessor DSET Corp. (hereinafter "Agreement"). (Plaintiff's Brief in Support of its Motion to Compel Production of Documents at 5). ESI uses this software to develop, test and maintain products in connection with its Local Number Portability project that permits telephone customers to retain their telephone numbers even when they switch carriers. (Id. at 6).

According to Plaintiff, the agreement entered into grants license on two criteria which in turn determine the license fees. (Id.). Those criteria are either (a) the number of CPUs onto which it has installed or will install the software, and (b) the number of programmers that access, or will access, the software. (Id.). Plaintiff also asserts that the agreement requires ESI to notify NET of any changes with respect to the number of CPUs and/or number of programmers accessing the Software. (Id.). Plaintiff alleges that the licenses provided to ESI were misused and thus brought this action alleging breach of contract, unjust enrichment, breach of implied duty of good faith and fair dealing, and deceptive trade practices. (Defendant's Brief in Opposition to Motion to Compel).

As all parties are familiar with the extensive procedural history of this case, the Court need not give a detailed summary of that history for the purpose of this Opinion. The Court will, however, include those procedural facts that are relevant to the reasoning of its Opinion

A. Plaintiff's Arguments

On October 15, 2007, Plaintiff Moved to Compel Defendant to produce time sheets for all computer programmers involved in the LNP project, invoices and statements related to all contractors' computer programmers, and project logs and any documents that disclose, or from which it can be determined, the total number of "man hours" expended on the LNP project. (Plaintiff's Brief in Support of its Motion to Compel Production of Documents at 8).

Plaintiff asserts that Defendant's refusal to respond to their document demands is not warranted. Plaintiff contends that Defendant must respond to all document demands propounded during the discovery period and as such, there is no authority that would allow a discovery request made within the discovery period to be refused. (Id.). Additionally, Plaintiff asserts that Defendant is engaging in a bad faith ploy to withhold documents that were requested before the end of the discovery period. (Rodger v. Addison-Wesley Pub Co., Inc., 99 F.R.D. 85 (N.D. Ga. 1983)).

Plaintiff asserts that the document request does not reflect a new unpled theory of liability as the Defendant contends, and that they have been pursuing this theory from the outset and it is therefore relevant to their claim. (Plaintiff's Brief in Support of its Motion to Compel Production of Documents at 11). Plaintiff asserts that this is proven by the fact that their claim that Defendant exceeded the scope of developer licenses was the focus of both interrogatories propounded to Defendant on June 12, 2007 and document demands of Defendant (specifically demands 5 and 7). (Id.). Plaintiff also asserts that from the outset of this litigation, Defendant has known that the basis for the document demand at issue is part of Plaintiff's claim and this is evident from Defendant's sworn interrogatory response of July 17, 2007 in which they address "ESI's alleged use of more licenses for developers seats than it purchased." (Id.). Additionally, Plaintiff asserts that Defendant also cannot claim that the document demands are overbroad or vague because Defendant's own witnesses narrowed the discovery demands by specifically identifying the documents Defendant would be in possession of as well as by identifying their contents. (Id.).

Plaintiff asserts that Defendant, as the party resisting discovery, has the burden of clarifying, explaining, and supporting its objections and that they have failed to discharge this duty. (Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)). Plaintiff continues its argument, asserting that Defendant's objections lacked the requisite specificity required of discovery objections. Plaintiff asserts that Defendant's objections were boilerplate in nature, were submitted without affidavits and therefore should be rejected. (Tequila Centinela S.A. de C.V., v. Bacardi & Co. LTC, 242 F.R.D. 1, 10 (D.DC 2007). Plaintiff also asserts that these boilerplate objections make Defendant's broadness and vagueness objections deemed waived under Rule 34. (Sabol v. Brooks, 469 F.Supp.2d 324 (D.Md. 2006)). Plaintiff asserts that the same is true for Defendant's relevance objections where they have failed to present an explanation (A. Farber and Partners, Inc. v. Garber, 234 F.R.D. 186 (C.D.Ca., 2006)).

Finally, Plaintiff asserts that Defendant should not accept its Counsel's assessment that the documents requested by Plaintiff do not contain the information sought. Plaintiff asserts that this is because Counsel has acted, not in an ordinary attorney's capacity to make a representation to the court, but as a witness that has testified to a factual matter. (Spivey v. United States, 912 F.2d 80, 84 (4th Cir. 1990)); (Freeman v. Vicchiarelli, 827 F.Supp 300 (D.N.J. 1993)). Plaintiff continues, asserting that Counsel is also not qualified to make the determination that he made because he is not an expert in computer technology or software. (Plaintiff's Brief in Support of its Motion to Compel Production of Documents at 15). ...


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