SMARTLINX SOLUTIONS LLC, Plaintiff, v. Vitzeslav ZEIF, Defendant Civil Action No. 2:21-cv-711-BHH United States District Court, D. South Carolina, Charleston Division Signed August 31, 2023 Counsel Alex Umansky, Pro Hac Vice, Howard A. Matalon, Pro Hac Vice, Richard J. Angowski, Jr., Pro Hac Vice, Olender Feldman LLP, Summit, NJ, Grant Michael Wills, Jennifer Kirk Dunlap, Baker Donelson Bearman Caldwell and Berkowitz PC, Charleston, SC, for Plaintiff. John E. North, North and Black, Beaufort, SC, Barrett R. Brewer, Brewer Law Firm LLC, Mt. Pleasant, SC, for Defendant. Baker, Mary G., United States Magistrate Judge ORDER *1 This matter is before the undersigned United States Magistrate Judge upon Defendant Vitzeslav Zeif's (“Zeif” or “Defendant”) Motion to Compel (Dkt. No. 53; see also Dkt. No. 132) and Plaintiff SmartLinx Solutions LLC's (“SmartLinx” of “Plaintiff”) Motion to Compel (Dkt. No. 130). By the Order of the Honorable Bruce Howe Hendricks, these motions were referred to the undersigned. (Dkt. No. 60; 134.) On September 20, 2022, Zeif filed a Motion to Compel. (Dkt. No. 53.) On December 15, 2022 and December 22, 2022, the undersigned issued Orders granting in part and denying in part Zeif's Motion and holding certain portions in abeyance. (Dkt. No. 93; 96.) Along with the below findings, the Court incorporates by reference the factual summary, findings, and analysis contained in those Orders. On June 9, 2023, SmartLinx filed a Motion to Compel, seeking access to Zeif's Google Drive and Dropbox cloud storage accounts for forensic examination. (Dkt. No. 130.) On June 30, 2023, Zeif filed a supplemental memorandum in support of his initial Motion to Compel, outlining specific interrogatories and requests for production that he asserts are still at issue. (Dkt. No. 132.) A video hearing was held on these matters on August 29, 2023. The instant Order memorializes the rulings made during that hearing. A. Plaintiff's Motion to Compel (Dkt. No. 130) At the hearing, Plaintiff's Motion to Compel (Dkt. No. 130) was granted. The Court finds the sought discovery is directly relevant to the claims and defenses in this action. As part of Plaintiff's trade secrets claim, it must show that Defendant used and misappropriated its trade secrets. The declarations provided by Plaintiff's forensic expert provide a sufficient basis to find that an inspection of Defendant's cloud storage accounts is necessary to investigate Defendant's alleged misappropriation. Also, while Plaintiff did not comply with Local Civil Rule 37.01, there is no evidence that Defendant has been prejudiced by any delay in filing the motion to compel. In the interest of justice, the Court will not deny Plaintiff's motion as untimely, especially considering the importance of the discovery to this case. Defendant is ordered to supplement his response to Plaintiff's Interrogatory No. 9 and provide all of the information requested by September 11, 2023. Defendant must also supplement its production specific to Plaintiff's Requests for Production Nos. 40 and 42. Specifically, to facilitate the inspection and copying of Defendant's Google Drive, Dropbox, Box, and iCloud accounts, the court will appoint an expert witness pursuant to Rule 706 of the Federal Rules of Evidence. The expert must be a neutral third-party who has not been engaged by plaintiffs or defendants in this case. The parties are to confer and agree upon who shall serve as the expert. Pursuant to Rule 706(c), the expert will be entitled to reasonable compensation. Plaintiff will be responsible for the entirety of the compensation.[1] Per Rule 706(c), the expert's compensation will be charged like other costs. *2 The parties must also confer and agree upon a protocol for the inspection and copying of the forensic image of Defendant's cloud storage accounts, taking particular care to prevent the disclosure of any privileged or personal, unresponsive information within the forensic image of the laptop. Given the allegations and evidence in the record, the inspection is limited to the time period of January 1, 2020 through March 1, 2021. The parties shall file a joint letter by September 11, 2023 that either: (1) identifies the agreed upon expert and protocol; or (2) explains the reason as to why the parties could not come to an agreement and includes each party's proposal for an expert and for the protocol. If the parties cannot agree upon the expert and/or the protocol, the court will consider the information in the parties’ joint letter and appoint an expert and/or establish a protocol. Once the court appoints an expert witness and a protocol is established, Defendant must make the forensic image of his cloud storage accounts available to the expert for inspection and copying in accordance with the established protocol. B. Defendant's Motion to Compel (Dkt. No. 53; see also Dkt. No. 132) At the hearing, Defendant's Motion to Compel (Dkt. No. 53) was denied in part and granted in part. In his supplemental memorandum, Zeif asks that the Court order SmartLinx to supplement its discovery responses fully and completely to his Interrogatories numbers 2, 4, 6, 8, 10, 13, and 14; and his Request for Production (“RFP”) numbers 1, 2, 3, 5, 7, 8, 9, 10, 13, 14, and 15. He also asks for fees and costs pursuant to Rule 37 of the Federal Rules of Civil Procedure. At the hearing, the Court denied the request for fees and costs. The Court denied the Motion to Compel with respect to Interrogatories number 14 and RFP numbers 1, 3, and 15. As for the remaining discovery requests, the Court granted the Motion to Compel, with supplemental production due by September 11, 2023, in the manner specified below: INTERROGATORIES (Dkt. No. 55-1): NO. 2: Identify each person who was informed, either orally or in writing, by any agent, employee, or other representative of SmartLinx that Zeif was fired for any of the reasons alleged in the Termination Letter attached to the Amended Complaint, the date of any such communication, and to whom any such statement was made. The Court grants the Motion to Compel Interrogatory No. 2. Plaintiff must review all e-mails, Zoom invitations, Zoom calendar entries, the invitation to the March 1, 2021 Zoom call and check with the people who were running that call, to the extent they are still available, to see if they can identify any other people on the call. When supplementing its response to this interrogatory, Plaintiff must confirm that it has complied with this Court-ordered review. To the extent Plaintiff cannot provide this information by the September 11, 2023 deadline, Plaintiff is expected to engage in rolling discovery on this issue. NO. 4: With respect to the proprietary information described in the response to the preceding interrogatory, please identify any person or entity receiving such information from Zeif, the date upon which it was received, and the witness or witnesses who have information concerning such receipt. The Court grants the Motion to Compel Interrogatory No. 4 to the extent Plaintiff must supplement its response with a statement that it has not limited its response here to any particular source of information. NO. 6: Please state with specificity the nature and extent of the damages SmartLinx contends it has suffered as the result of the alleged misappropriation and the totality of those damages. The Court grants the Motion to Compel Interrogatory No. 6 and reminds Plaintiff of its duty to supplement the answer to this interrogatory as soon as possible. NO. 8: Identify each person by name and by year first authorized to access the SmartLinx GitHub repository from January 1, 2007, until the present, including both employees and outside contractors. The Court grants the Motion to Compel Interrogatory No. 8. Plaintiff must supplement its response by providing the names of the outside contractors who were authorized to access the GitHub repository from January 1, 2020 through March 1, 2021. To the extent Plaintiff cannot provide this information by the September 11, 2023 deadline, Plaintiff is expected to engage in rolling discovery on this issue. *3 NO. 10: Please describe with specificity the substance and dates of all oral communications between Tino Kyprianou and/or other personnel of Digital4Nnx Group, LTD and SmartLinx, its agents and representatives, relating to or in connection with the examination of the devices identified in Exhibit J to the Amended Complaint, both before and after preparation of Exhibit J, including any explanation of the manner in which the SmartLinx network was configured and operated. The Court grants the Motion to Compel Interrogatory No. 10. Plaintiff must ensure that it discloses all information that is excepted under Rule 26(b)(4)(C) of the Federal Rules of Civil Procedure, including through the present date. NO. 13: Please state the date upon which any agent or employee began to examine or monitor activity on the computer used by Zeif, the name of the person or entity doing the monitoring, and identify any documents or communications relating thereto. The Court grants the Motion to Compel Interrogatory No. 13. Plaintiff must supplement this interrogatory by breaking down the documents referenced in Plaintiff's response—Plaintiff must specify what the documents are and how they relate to the interrogatory. Plaintiff must also confirm: (1) that there are no responsive e-mail communications and all communications were conducted orally; and (2) that Plaintiff has given all communications relating to the examination and monitoring of Zeif's computer. REQUESTS FOR PRODUCTION (Dkt. No. 55-3) NO. 2. All documents upon which SmartLinx relies to establish the nature, calculation and total amount of damages claimed herein. The Court grants RFP No. 2 and reminds Plaintiff of its duty to supplement the answer to this interrogatory as soon as possible. NO. 5. All documents and communications provided to, and received from Tino Kyprianou and/or other personnel of Digital4Nnx Group, LTD relating to or in connection with the examination of the devices identified in Exhibit J to the Amended Complaint, both before and after preparation of Exhibit J, including any document in which the scope of his work was described, and his compensation therefore. The Court grants the Motion to Compel RFP No. 5. Plaintiff must ensure that it discloses all documents and communications that are excepted under Rule 26(b)(4)(C) of the Federal Rules of Civil Procedure, including through the present date. NO. 7. A schedule from the SmartLinx VTST system of “Pull Requests” initiated by Zeif to the GitHub repository, including the dates of each “Pull Request”, without inclusion of automatic actions such as system syncing. NO. 8. A schedule from the VTST system of downloads of computer codes by Zeif from the GitHub repository, including the dates of each such download, without including any automated actions such as system syncing. NO. 9. Schedules from the VTST system of downloads of computer code to the individual computer devices of Leandro Gomez, Dmitri Semenov, Ione Gurovich, Egor Gurovich, Chris Matthews, Rob Dauch, and Alexander Mishenko from the GitHub repository, including the dates of each such download, without including any automated actions as systems syncing. The Court grants the Motion to Compel RFP Nos. 7, 8, and 9. Plaintiff must supplement its responses to these RFPs specific to the time period of January 1, 2020 through March 1, 2021. NO. 10. Any and all written guidelines or instructions concerning or relating to access to, use, or functioning of the GitHub repository or the VTST system. *4 The Court grants the Motion to Compel RFP No. 10 to the extent counsel must supplement its response with a statement that the client has searched and it has provided all responsive documents. Counsel must ask its client whether it has provided the complete set of written guidelines and instructions. NO. 13. All documents concerning the bonus for 2020 paid to Zeif in February 2021, including the basis and computation of the amount of the bonus, the amount of each deduction made from the gross amount of the bonus, the attempts to reverse or rescind payment thereof, and all communications, including email communications relating to the decision to rescind the bonus and actions instituted to do so. The Court grants the Motion to Compel RFP No. 13 to the extent Plaintiff must provide a statement that the produced records are the only non-privileged records responsive to this RFP. To the extent more non-privileged records exist that are responsive, they must be produced by September 11, 2023. NO. 14. All communications between any employee, agent or representative of SmartLinx and any other person between February 15, 2021 and the present in which Zeif was mentioned, including recorded Zoom and other meetings or conversations. The Court grants the Motion to Compel RFP No. 14 to the extent Plaintiff must provide a statement that the produced records are the only non-privileged records responsive to this RFP. To the extent there are more non-privileged records that are responsive, they must be produced by September 11, 2023. AND IT IS SO ORDERED. Footnotes [1] In its Motion, Plaintiff offered to pay for “a neutral third-party whom the parties mutually agree upon.” (Dkt. No. 130 at 6.)