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Dig. Mentor, Inc. v. Ovivo USA, LLC

United States District Court for the Western District of Washington

February 4, 2020, Decided; February 4, 2020, Filed

Case No. 2:17-cv-01935-RAJ

Opinion

ORDER

I. INTRODUCTION

This matter is before the Court on Defendant Ovivo USA, LLC's ("Ovivo") motion to compel. Dkt. # 118. The Court will also address Plaintiff Digital Mentor, Inc.'s ("DMI") motion for leave to file a second amended complaint. Dkt. # 126. For the reasons below the Court GRANTS in part and DENIES [*2]  in part Ovivo's motion to compel and GRANTS DMI's motion for leave to amend.

II. BACKGROUND

This discovery dispute stems from William Chastain's consulting role with DMI. DMI claims that Chastain was its "functional employee" and so his communications with DMI are subject to attorney-client privilege or work product protection. Dkt. # 120. Chastain was purportedly involved in the negotiation, discussion and execution of the pertinent contracts and agreements at issue with Ovivo and was a direct conduit of DMI in the events leading up to this litigation. Id. He joined DMI as an advisor in or about December 2014 and "spent several months, and over a hundred hours with [DMI]'s three founders, Nancy Heuman, Scott Wenger and Howard Brewen, and [DMI's] developers, learning about the water and waste water industry, and their unique technological breakthrough product." Dkt. # 43. During the DMI-Ovivo negotiations, Chastain claims to have played a role in the execution of a non-disclosure agreement between the parties. Id. He was never paid for his role and was never employed by DMI. Id.

Ovivo takes the position that Chastain does not qualify as a "functional employee" and moves to compel DMI [*3]  to produce all documents relating to Chastain, including correspondence between Chastain, DMI and/or its counsel; even documents identified DMI's privilege log. Dkt. # 120. Ovivo also seeks to prohibit DMI from relying upon any documentation including or relating to Chastain and any testimony from, or referring to, Chastain during hearings or trial. Id. Finally, Ovivo seeks reasonable fees and expenses in bringing this Motion. Id.

III. LEGAL STANDARD

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2020 U.S. Dist. LEXIS 18527 *; 2020 WL 550746

DIGITAL MENTOR, INC., a Delaware corporation, Plaintiff, v. OVIVO USA, LLC, a Delaware corporation, Defendant.

Prior History: Digital Mentor, Inc. v. Ovivo USA, LLC, 2018 U.S. Dist. LEXIS 11707 (W.D. Wash., Jan. 24, 2018)

CORE TERMS

discovery, documents, sanctions, amend, communications, spoliation