Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

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Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 46 of 139 DeHarde was deposed on April 1, 2009. He testified that he had looked for “the emails that [he] and Mr. Bell exchanged concerning – forming a company to compete with Rimkus” but did not “recall” whether he was able to find those emails. (Docket Entry No. 313, Ex. F, Deposition of Michael DeHarde at 13:10–:16). The following exchange occurred: Q: What did you do to try to find them? A: I looked on my computer. Q: And when did you do that, sir? A: I don’t recall. Q: Can you give me an estimate of when you did it? A: About 2007, 2008, something like that. Q: Why did you do it? A: Because I was requested to do that. Q: And did you find any? A: I don’t recall. Q: What would you have done with them after you found them? A: Given them to Larry Demmons [counsel for defendants Bell and Cammarata]. MR. WARD [counsel for Rimkus]: Larry, do you have any emails from Mr. DeHarde? MR. DEMMONS: 46
Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 47 of 139 Nothing other than what’s been turned over. MR. WARD: I don’t believe anything has been turned over from Mr. DeHarde. MR. DEMMONS: Then I didn’t get anything from Mr. DeHarde. (Id. at 13:17–14:17). DeHarde testified that he deleted emails—including email communications with Bell, Cammarata, and Janowsky—because of concern about the storage capacity of his Yahoo! email account. (Id. at 37:14–:20; 38:19–:25). DeHarde testified that he did not delete emails on a regular or systematic basis. (Id. at 22:2–:10). 28 After this deposition, Rimkus asked this court to compel DeHarde to look for and produce documents and information responsive to the subpoena duces tecum. This court ordered DeHarde to do so and to reappear for one hour of additional deposition questioning. Rimkus then subpoenaed several internet service providers seeking the defendants’ emails. At a hearing held on May 1, 2009, this court permitted Rimkus to proceed with those subpoenas with limits based on relevance and privacy protection. 29 The May 1, 2009 hearing revealed that the defendants’ efforts to locate and retrieve electronically stored information, 28 Pages 22, 37, and 38 of the April 2009 deposition of Mike DeHarde are quoted in Rimkus’s motions for contempt and sanctions and are identified in the motion as attached as Exhibit F. (Docket Entry No. 313 at 13–14). Exhibit F, however, contains only sporadic pages from the DeHarde deposition and does not include pages 22, 37, or 38. The content of these passages of DeHarde’s deposition have not been disputed. 29 The defendants objected to some of the subpoenas on the grounds that they would allow Rimkus to access private, irrelevant information as well as emails covered by attorney–client privilege. This court required the subpoena notices to direct the ISPs to use search terms to avoid production of personal or privileged emails. This court also required the documents from some of the internet service providers to be submitted directly to the court for in camera review before production to Rimkus. 47
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Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

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