United States District Court, N.D. Indiana, Hammond Division
APEX COLORS, INC. Plaintiff,
CHEMWORLD INTERNATIONAL LIMITED, INC., CHEMWORLD INTERNATIONAL LIMITED, LLC, ATUL MODI, MANOJ MODI, and PAUL BYKOWSKI, Defendants.
OPINION AND ORDER
MAGISTRATE JUDGE PAUL R. CHERRY JUDGE
matter is before the Court on a Motion for Order to Compel
Supplemental Production of Finos Documents and
Forensically-Imaged Hard Drive of Molnar Computer [DE 562],
filed by Defendants Paul Bykowski, Atul Modi, Manoj Modi,
Chemworld International Limited, Inc., and Chemworld
International Limited, LLC on February 14, 2018. Plaintiff
Apex Colors, Inc. filed a response on February 27, 2018,
Defendants filed a reply on February 28, 2018, Apex filed a
sur-reply on March 1, 2018, and Defendants filed a
sur-response on March 1, 2018.
LLC's members were Apex Colors, Inc. and Jim and Eric
Boggess. In October 2012, Finos LLC was dissolved. The terms
of the settlement agreement governing the dissolution provide
that the documents and data in the physical possession of Jim
and Eric Boggess became their property: “[A]s of the
Effective Date the Trustee shall assign to and the Boggesses
and/or Boggess Holdings will have the right to retain and
use those assets of Finos that the Trustee or the
Boggesses have in their possession or control, including but
not limited to the inventory, cash and accounts
receivable.” (Preliminary Injunction Hearing Ex. 13);
(ECF 574) (sealed). The Boggesses moved at least some, if not
all, of the property in their physical possession to their
business location in Kentucky. The item in dispute on the
instant motion is a computer used by Chris Molnar when he was
working for Finos (“Finos computer”), which was
in the possession of the Boggesses at the time of the
dissolution and became the Boggesses' property.
the course of discovery in this case, Apex learned that the
Finos computer was in the possession of the Boggesses, who
are not parties to this litigation. Having served the
Boggesses with a subpoena for materials relevant to this
litigation and having instituted a subpoena enforcement
action, Apex communicated with the Boggesses in mid-August
2017, asking for full access to the entire Finos computer
without search term limitations on the basis that it was a
computer used at Finos by a Finos employee. (ECF 571-1, Ex.
A, p. 2-3). Later in August, the Boggesses confirmed that
they were able to get the computer running such that
third-party vendor One Source should be able to image the
computer directly and proposed that, with Apex's consent,
One Source proceed to image the computer. Id. at
p.1. However, the Boggesses proposed that One Source run a
date filter and provide all documents and files dated prior
to October 31, 2012, the approximate date that the Finos
computer was transferred from the Finos facility in Portage,
Indiana, to the Boggesses' facility in Kentucky. The
end-date filter was proposed by the Boggesses because, after
that date, the Finos computer was used for a limited time by
NeoNos. Id. NeoNos is a competitor of both Apex and
Defendants. Apex agreed, and One Source proceeded to image
the computer, to run the October 31, 2012 end-date filter,
and to produce the data to Apex. Id.; (ECF 562-3,
Ex. C, p. 1).
October 5, 2017, Apex informed Defendants that “One
Source has imaged and is providing us with the computer used
by Chris Molnar. It is Attorneys Eyes Only for Defendants. If
you would like a copy you can order it through Jason Hale
(copied here). Please discuss cost and delivery options with
him.” (ECF 562-3, Ex. C, p. 1).
October 11, 2017, Defendants contacted Jason Hale, writing
that Defendants understood that “you have imaged Chris
Molnar's computer from Finos, LLC, ” that
Defendants would like a copy, but that Defendants would like
a cost and shipping estimate. The same date, Hale responded,
“To clarify, are you asking for the data production
that was provided to [counsel for Apex] or the forensic image
of the computer? The data provided to [counsel for Apex] was
a subset of the data stored on the computer.” (ECF
562-4, Ex. D, p. 1).
later, on November 12, 2017, Defendants contacted Jason Hale,
asking for the cost of both the data production to counsel
for Apex and as well as the cost for the entire forensic
image. (ECF 562-5, Ex. E, p. 1). On November 14, 2017, Hale
provided the cost for each of the two options. (ECF 562-6,
Ex. F, p. 1).
November 14, 2017, counsel for the Boggesses asked Jason Hale
to confirm that the same date filter that was used to provide
documents to counsel for Apex would be used in providing a
full forensic image to Defendants. (ECF 562-7, Ex. G, p. 1).
Hale clarified that a full forensic image would include all
files on the system, regardless of the date or type.
Id. Hale explained, “If we're limited to
turning over files based on date, etc., a copy of the
production previously provided to [counsel for Apex] would
probably be best.” Id. Counsel for Defendants
was copied on this email from Hale. Id.
on the documentation before the Court, the next contact by
Defendants regarding the Finos computer occurred on February
12, 2018, when counsel for Defendants sent an email to
counsel for Apex, counsel for the Boggesses, and Jason Hale
in which Defendants assert that they believe that they are
entitled to the entire forensic image of the Finos computer
as responsive to their 2014 and 2017 Requests for Production
of Documents served on Apex. (ECF 562-8, Ex. H, p. 1).
Defendants contend either that Apex should review the
forensic image and produce responsive documents to Defendants
as a supplement or that the entire image should be turned
over to Defendants for an independent review of the contents.
same date, Apex responded that Apex agrees that Defendants
have a right to what Apex received from the Rule 45 subpoena
served on the Boggesses and that Apex believed that
Defendants had received all the materials. (ECF 562-9, Ex. I,
p. 2). Apex specified that it had received production on the
Macola and Commence databases as well as from the Finos
computer (at issue on this motion) and that it was Apex's
understanding that the materials had either been provided to
Defendants and/or that Defendants had been offered the
materials for a production fee payable to One Source.
Id. Apex objected that Defendants had no basis for
asserting a right to more materials than what Apex received
through the subpoena. Id. Apex noted that Defendants
chose not to enforce their own subpoena against the
also informed Defendants that Apex does not have control over
Eric Boggess' property or anything in Eric Boggess'
possession as of the signing of the settlement agreement
governing the dissolution of Finos, LLC. (ECF 562-10, Ex. J,
p. 1); (ECF 571-1, Ex. B, p. 1). Apex reminded Defendants
that Apex obtained access to some of the documents over Eric
Boggess' objection, through motion practice before the
Court. (ECF 562-10, Ex. J, p. 1); (ECF 571-1, Ex. B, p. 1).
And, Apex reiterated that Apex has ...