Re: 1/30/02 - [Marchese vs. Dobry] Court compels Dobry to produce missing hard drives
January motion to compel
MOTION TO COMPEL
Plaintiff, Richard Marchese (“Marchese”), through his attorneys, hereby moves the Court for the entry of an Order compelling defendant Gary Dobry (“Dobry”) to immediately disclose the location and/or disposition of the hard drives which were contained in two computers which Dobry was to produce pursuant to prior orders of the Court. In support of this motion, Marchese states as follows:
1. On December 8, 2000, Marchese served upon Dobry a Request for Production and Inspection of Computers requesting Dobry produce for inspection and copying any computers in his possession or control which he used to post messages on the Internet or send electronic mail.
2. On January 2, 2001, in response to Marchese’s First Set of Interrogatories, Dobry identified two computers as the only computers that he had used to post messages on the Internet or send electronic mail. In those responses he identified a Gateway Essential Pentium III, Serial No. 0018044340 and an Acer Power Pentium, Serial No. 4200065150.
3. After repeatedly refusing over the course of almost one year to produce the identified computers for inspection and copying, Marchese filed a motion to compel the production of the computers. On November 14, 2001 this Court granted Marchese’s motion to compel and ordered Dobry to produce those computers for inspection and copying.
4. After much negotiation between the parties, a protective order was entered on December 28, 2001 setting forth detailed protocols to be used for the inspection of copying of the two computers identified by Dobry in his interrogatory answers.
5. The Order regarding inspection and copying of Dobry’s computers required Dobry to produce those computers for inspection by Marchese’s retained expert on or before January 11, 2002. Approximately one week before the inspection which had been set between the parties, Dobry filed a motion to reconsider the Order regarding inspections of the computers. In support of that motion, Mr. Dobry filed with the Court a sworn affidavit in which he made the following statement:
“I changed the hard drive on each computer in August 2001 and installed security, including fire walls and intrusion alerts on each computer. The “my documents” folder was copied from my home computer, analyzed for viruses and reinstalled on the new hard drives. There are no other items on the hard drive created prior to August 2001. (Emphasis added)”
6. Based on Dobry’s sworn testimony as aforesaid, Mr. Dobry has admitted doing one of three things: (1) deliberately erasing or deleting in August 2001 the contents of the hard drives which remain in the computers; (2) removing the hard drives which were in the computers prior to August of 2001 and destroying them; or (3) removing the hard drives which were in the computers prior to August of 2001 and maintaining possession or control of them but not producing them for inspection or copying.
7. In an effort to determine which of the foregoing is in fact the case, counsel for Marchese sent counsel for Dobry a letter on January 15, 2002 requesting clarification of Dobry’s sworn testimony. A copy of that letter is attached hereto as Exhibit A.
8. On January 16, 2002 counsel for Dobry responded by refusing to respond to the question and instead stating that he would only respond to a supplemental interrogatory. A copy of this letter is attached hereto as Exhibit B.
9. No supplemental Interrogatory regarding the disposition of the hard drives that were in the computers up to August 2002 is necessary. The hard drives which were in the computers as of August 2001 were the subject of the December 8, 2000 discovery requests, of the order to compel, and the subsequent Protective Order regarding inspection and copying of the computers. These were the hard drives that were in the two identified computers at the time the request for production was made, and to the extent that they still exist, are subject to be produced and inspected pursuant to the Court’s Order.
10. If in fact Mr Dobry is still in possession of these hard drives they must be immediately produced for inspection and copying by Marchese expert pursuant to this Court’s prior Orders. If they in fact have been deliberately destroyed subsequent to the service [of] a discovery request specifically requesting them that will obviously be the subject matter of a much different motion.
WHEREFORE, Richard Marchese respectfully prays for an Order:
A. Requiring Dobry to disclose the location and/or disposition of the hard drives that we[re] contained in the two identified computers prior to August 2001;
B. If Dobry remains in possession or control of those hard drives, directing that he immediately produce them for inspection or copying in accordance with the terms of the Protective Order entered in this matter on December 28, 2001.
RICHARD MARCHESE
By: One of His Attorneys
David S, Argentar
Mandell Menkes & Surdyk, LLC
333 W. Wacker Drive, Ste. 300
Chicago, Illinois 60606
(312) 251-1000
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EXHIBIT A
January 15, 2002
By Facsimile
Mr. Tobin M. Richter
Law Offices of Tobin M. Richter
53 West Jackson Boulevard
Suite 560
Chicago, Illinois 60604
Re: Richard Marchese V. Gary Dobry
Court No. 00 CV 5606
Our File No. 2710
Dear Tobin:
In the sworn affidavit Mr. Dobry submitted to the Court in support of his motion to reconsider, he makes the following statements: “…I changed the hard drive on each computer in August of 2001…”; other than the “My Documents” folder from Mr. Dobry’s home computer, “…There are no other items on the hard drives created prior to August 2001.”
From the foregoing admissions by your client, it would appear that Mr. Dobry did one of the following: 1) destroyed or otherwise disposed of the hard drives on both computers in August 2001; 2) removed the hard drives that were in the computers in August 2001, and is still in possession of those hard drives; or 3) erased all contents of those hard drives (except “my documents”) in august, 2001 and had them reinstalled in the computers.
Please advise by the end of business Wednesday, January 16, 2002 as to the disposition of those drives. If Mr. Dobry is still in possession of the hard drives that were in the computers prior to August 2001, those drives are subject to the December 8, 2000 request for production and the court’s subsequent order to compel and we demand that they be immediately provided to Mr. Bobb pursuant to the terms of the protective order. If Mr. Dobry either destroyed, disposed of, or erased the contents of the hard drives, he willfully and deliberately destroyed documents and materials that were the subject of a valid request for production and were clearly at issue in this litigation. In that event, we will accordingly move for the entry of a default judgment against your client for his deliberate spoliation of evidence.
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EXHIBIT B
January 16, 2002
VIA FAX (312) 251-1010
Mr. David S. Argentar
Davidson Mandell Menkes & Surdyk, LLC
333 West Wacker Drive
Suite 300
Chicago, Illinois 60606
RE: MARCHESE v. DOBRY
Dear David:
This letter will acknowledge receipt of your letter of January 15 regarding computers.
First, I note that it upset you when I suggested a seven (7) days time for you to respond to me, but you have in turn suggested that I respond in just 24 hours.
Second, I take the issue of computer inspection and the integrity of the process very seriously. It is, however, a formal process governed by court order.
Third, the issue you now raise could have been raised in open court before Judge Levin when Mr. Dobry presented his motion for reconsideration. Instead, you spent your energy claiming that I was delaying things and by making an inappropriate motion for sanctions.
Fourth, as you pointed out to me in your earlier letter to me of January 15, 2002, in effect, if I have a question for Mr. Marchese you invited me to put it in a supplemental interrogatory; I suppose the same can be said to you: if you have a question for Mr. Dobry, put it in a supplemental interrogatory. The point you were making to me, and it is a good one, is that we are not going to generate client testimony in letters between counsel.
Fifth, in an effort to resolve this issue, I suggest you send me an interrogatory which we will answer with our response to the results of Mr. Bobb’s inspection.
Very truly yours,
Tobin M. Richter
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Motion Granted -
The Motion To Compel Dobry to:
"immediately disclose the location and/or disposition of the hard drives which were contained in two computers which Dobry was to produce pursuant to prior orders of Court."
was granted on 30 January 2002.
Case Listing - 1 cases selected for Marchese, Richard
Case No. Date Filed Plaintiff Defendant Type Judge Magistrate
1:00-cv-5606 09/12/00 Marchese Dobry CV George M. Marovich Ian H. Levin
Source: Racer |
