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 78 of 139 reasonably incurred in investigating the spoliation, obtaining emails from third-party subpoenas, and taking the additional depositions of Bell and Cammarata on the issues of email deletion. No later than March 1, 2010, Rimkus must provide affidavits and supporting bills and related documents showing and supporting the amount of those costs and fees. C. The Perjury Allegations Rimkus alleges that Bell and Cammarata perjured themselves during their depositions. 36 Perjury is offering “false testimony concerning a material matter with the willful intent to provide false testimony, rather than a as result of confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993). Perjury is not established by mere contradictory testimony from witnesses or inconsistencies in a witness’s testimony. See Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990). Rimkus argues that inconsistencies between Bell’s deposition testimony and documents produced in this case establish that he committed perjury. Rimkus cites Bell’s deposition testimony that he did not take customer information or other confidential Rimkus information when he left the company and emails Bell sent in November and December 2006 soliciting work from individuals he dealt with while at Rimkus. Rimkus also points to the incurred in connection with this motion.”); Broccoli v. Echostar Commc’ns Corp., 229 F.R.D. 506, 512–13 (D. Md. 2005) (ordering the defendant to pay “reasonable costs and attorneys’ fees,” including those for “client, third party and intra-office meetings” and “time charged for drafting and editing the motion” but reducing the amount sought). 36 Rimkus also alleges that DeHarde, Janowsky, and Darren Balentine of U.S. Forensic Associates, LLC, gave false testimony in their depositions. These individuals are not parties and did not testify as a party representative. The Rule 30(b)(6) witness for U.S. Forensic was Gary Bell. Rimkus does not allege, and there is no basis to conclude, that DeHarde, Janowsky, or Balentine gave testimony on behalf of U.S. Forensic. The testimony of these third parties, false or not, does not provide a basis for sanctioning the party defendants in this case. 78
Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 79 of 139 recently produced April 2008 email Bell sent himself that contained Rimkus customer information that appeared to have been created by Balentine while he was still employed at Rimkus and Bell’s testimony that he did not use Rimkus customer information in soliciting U.S. Forensic clients. Rimkus argues that Bell could not have obtained contact information for these individuals without using Rimkus customer lists and that Bell’s “denial of the use of Rimkus’s confidential client information in soliciting clients therefore is outright false.” (Docket Entry No. 313 at 25). Rimkus’s arguments do not take into account Bell’s deposition testimony about how he obtained contact information and who he attempted to contact after he left Rimkus. Bell testified that when he first began soliciting business for U.S. Forensic, the internet was his primary source for obtaining contact information. He also used the Casualty Adjuster’s Guide. Bell testified that he “tried to get work from anybody that would send us work. It didn’t matter to me if they were a Rimkus customer, if they weren’t a Rimkus customer, I -- I had to do it on my own -- and, you know, many of the people that don’t use Rimkus were exactly the people we wanted to target.” (Id., Ex. D, Deposition of Gary Bell, Vol. II at 62:15–:21). Although many of the emails show that U.S. Forensic focused its solicitation efforts on former Rimkus clients the U.S. Forensic founders knew, which is inconsistent with Bell’s testimony, the record is not sufficient to show that Bell committed perjury when he stated that he did not take Rimkus’s confidential customer contact information. Rimkus argues that the April 2008 email Bell sent himself, with Rimkus client-contact information attached, makes Bell’s prior testimony that he did not take or use Rimkus client- 79
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Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

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