Iacovacci v. Brevet Holdings, LLC

Background

The court issued this order after a post-discovery conference. Fact discovery had closed on October 7, 2021, and expert discovery had closed on December 3, 2021. Paul Iacovacci later identified two unresolved discovery disputes: a request for materials from an investigation by Greenberg Traurig on behalf of Defendants concerning alleged trade-secret misappropriation, and a request for his expert to examine the configuration of two Defendants’ work computers.

Greenberg Traurig Investigation

Iacovacci argued that Doug Monticciolo, Brevet Holdings, LLC’s founder and chief executive officer, had discussed the investigation during his deposition and therefore waived attorney-client privilege. The court treated the request as an attempt to reopen discovery and applied the requirement that a party show good cause, including diligence and a reasonable explanation for missing the discovery deadline.

The court held that the request was untimely. Iacovacci had more than a month after the relevant depositions to raise the issue with the court and did not do so before the discovery deadline, despite the court’s scheduling order and individual rules. The court also found that Iacovacci had not requested the investigation materials during the deposition; he had requested only an engagement letter. Defendants stated that no such engagement letter existed.

The court separately held that Monticciolo had not waived privilege. The cited testimony concerned Defendants’ decision to terminate Iacovacci or referred to an internal investigation, rather than showing that Defendants had used the Greenberg Traurig investigation to support their claims in this case. The court therefore denied Iacovacci’s request for the investigation materials. Defendants did not have to produce the investigation’s work product, but the court ruled that they could not rely on that investigation as a defense at trial because privilege could not be used both to withhold information and to support a defense.

Computer Inspection

The parties had discussed a procedure for Iacovacci’s expert to inspect Defendants’ work computers. Iacovacci sought examination of the computers’ configuration to determine whether and how Defendants had changed them since he requested inspection. The court held that this request was also untimely because Iacovacci did not respond to Defendants’ October 19, 2021 email or raise the dispute with the court until after discovery had closed.

The court also found that configuration information had no useful evidentiary value because Defendants already acknowledged that the computer installed in Iacovacci’s office had been reconfigured and repurposed after his termination. The court otherwise denied the request to inspect the computers’ configurations. However, if Iacovacci accepted Defendants’ existing offer, the court allowed discovery to reopen for his expert to observe and record the process of turning on and logging into one work computer.

Other Orders and Disposition

The court ordered Iacovacci to file a letter by March 8, 2022, stating whether he would accept the limited computer inspection. If he accepted, the parties were to arrange the inspection by March 31, 2022, and report by April 7, 2022, whether it had occurred. The court then expected to schedule briefing on summary-judgment motions and motions to exclude expert testimony.

The court denied Iacovacci’s request for the Greenberg Traurig investigation materials, denied his request to examine the offered computers’ configurations, granted the motion to seal Exhibit 1 of the parties’ joint letter, and directed the Clerk to close docket entry 266.