The opinion of the court was delivered by: Charles S. Miller, Jr. United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL
Before the court is a Motion to Compel filed by the plaintiff, Weatherford U.S., LP ("Weatherford"), on March 28, 2011. For the reasons set forth below, the motion is granted.
Weatherford is a Texas-based oilfield services company doing business in North Dakota. It hired Chase Innis ("Innis") to work in the Williston office of its tubular running service (TRS) division on September 24, 2007.
Weatherford terminated Innis on morning of August 12, 2009. Unbeknownst to Weatherford, Innis returned to its TRS office in Williston later that evening. Shortly before midnight he logged onto Weatherford's intranet site using his work computer and downloaded a number of files onto a SanDisk thumb drive.
On August 31, 2009, Innis formed Noble Casing, Inc. ("Noble Casing"), a competing oilfield services company. On September 17, 2009, Weatherford filed suit against Innis and Noble Casing in this court, asserting that Innis had used his knowledge of Weatherford's business practices along with files he had surreptitiously downloaded from Weatherford's intranet site to his thumb drive to "jump start" Noble Casing. Its complaint set forth ten causes of action: (1) violations of 18 U.S.C.§ 1030; (2) misappropriation and inevitable disclosure of trade secrets in violation of N.D.C.C. Ch. 47-25.1; (3) breach of a written employment agreement; (4) tortious interference with business relations; (5) breach of the duty of loyalty; (6) misappropriation of trade secrets; (7) violations of N.D.C.C. § 32-02-014; (8) unjust enrichment; (9) unfair competition; and (10) conversion.
The court held a scheduling conference with the parties on December 14, 2009. Thereafter it issued a scheduling and discovery order memorializing the pretrial deadlines agreed upon by parties. At the parties' request, this order was later amended.
On June 3, 2010, Weatherford served a deposition notice and subpoena duces tecum upon Innis. Therein it requested that he produce the original external storage device onto which Chance Innis downloaded files from his work computer on August 12, 2009, and numerous categories of documents. (Docket No. 33-3).
At his deposition, Innis acknowledged that he used Weatherford's computer in the late evening and early morning hours of August 12 and 13, 2009, to download files without authorization onto a SanDisk thumb drive. He claimed, however, that he did not later open or go through the downloaded files. (Docket No. 33-1, at Dep. pp. 87-89).
Innis produced the drive onto which he had downloaded Weatherford's files and it was subsequently examined by Weatherford's forensic expert, who, in a report opined that files containing Weatherford information were accessed from the thumb drive after Mr. Innis' termination on 8/12/2009. On 8/19/2009 two Weatherford spreadsheets were accessed on the same date a new price list document was copied to the thumb drive. It is also my opinion that an Apple Mac computer was used to access files on the thumb drive on 8/24/2009 and that files could have been copied off the thumb drive on 9/25/2009. (Docket No. 33-4).
On September 16, 2010, Weatherford wrote to defendants to request the production of certain documents that Innis had stated were available and had agreed to produce during his deposition. (Docket No. 33-5). Defendants' counsel allegedly did not respond to this letter and claimed he did not receive it.
On November 2, 2010, Weatherford served a second set of Requests for Production on defendants. Therein, Weatherford requested access to all computers owned by Noble Casings and used by its employees since its inception as well as any and all portable storage devices that had been plugged into these computers. (Docket No. 33-6). Defendants objected to these requests on the grounds that they were unduly burdensome, overly broad, not reasonably calculated to lead to discoverable evidence, and could result in the disclosure of confidential and proprietary information.
Following the service of the second set of discovery requests, counsel for Weatherford corresponded with defendants' counsel by e-mail on several occasions in an attempt to resolve the outstanding disputes, to no avail. (Docket Nos. 33-8 & 33-9). On February 23, 2011, Weatherford's counsel advised defendants' counsel of its intent to move forward with a motion to compel if satisfactory responses were not made on or before February 28, 2011. (Docket No. 33-10). All of this occurred prior to the discovery cutoff deadline.
Under the court's local rules, counsel are required to do two things before filing discovery any motions. First, they are required to confer and attempt in good faith to resolve the disputes. Second, if they are not able to do so, they are required to schedule a telephone conference with one of the magistrate judges for the purpose of talking through the discovery disputes to see if they can be resolved informally, and, if not, for the magistrate judge to decide how best the disputes can be resolved. D.N.D. Civ. L.R. 37.1. To satisfy these requirements, Weatherford's counsel conferred with defendants' counsel in person on March 1and 2, 2011. When that was unsuccessful, she scheduled a telephone conference with the ...