Vention Medical Advanced Components, Inc. v. Pappas, 050616 NHSUP, 2014-CV-00604

Docket Nº:2014-CV-00604
Opinion Judge:RICHARD B. McNAMARA, PRESIDING JUSTICE.
Party Name:Vention Medical Advanced Components, Inc. d/b/a Advanced Polymers, a Vention Medical Company v. Nikolaos D. Pappas and Ascend Medical, Inc.
Case Date:May 06, 2016
Court:Superior Court of New Hampshire
 
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Vention Medical Advanced Components, Inc. d/b/a Advanced Polymers, a Vention Medical Company

v.

Nikolaos D. Pappas and Ascend Medical, Inc.

No. 2014-CV-00604

Superior Court of New Hampshire

May 6, 2016

UNPUBLISHED OPINION

ORDER

RICHARD B. McNAMARA, PRESIDING JUSTICE.

Plaintiff, Vention Medical Advanced Components, Inc., d/b/a Advanced Polymers, a Vention Medical Company ("Vention"), has filed a Motion to Compel Forensic Examination, to which the Defendants, Nickolaos D. Pappas and Ascend Medical, Inc. ("Ascend"), object. The Court held an evidentiary hearing on the matter beginning April 20, 2016. Based on the following, the Motion is GRANTED as to the requested forensic examination, under the protocols set forth in this Order, of the portion of the hard drive of Defendants' computer containing Inventor Computer-Aided Design ("CAD") program files and DENIED as to the remaining requests.

I

Broadly, Vention contends that Pappas failed to diligently search for electronically stored information ("ESI") responsive to discovery requests by personally selecting documents he deemed responsive rather than relying on counsel to make the determination, only searching for documents he believed were responsive, and conducting a manual search for documents rather than searching by key words. It is apparent from the testimony at the hearing that Pappas, rather than utilizing word searches to obtain relevant documents, relied on personal memory to try to obtain information and that in doing so, he failed to produce a number of documents responsive to production requests. Vention reasonably complains that since Pappas used only one computer in his startup operation and the only business in which the Defendants were engaged is the business at issue in this case, it would have been far more reasonable to cull personal information out of the computer and then provide it to counsel to determine what was required to be produced. Moreover, the record is clear that a number of documents were only produced after Vention's additional prodding.

Vention points to several instances where it received vendor documents from third-parties that Pappas should have produced. Vention also asserts that Pappas deliberately avoided providing certain documents he believed were too confidential and would not provide certain documents or information unless requested specifically. Vention maintains that certain material documents remain undisclosed, including CAD files with general tab and dimensional information, vendor communications, and research and manufacturing documents, including specifications and quality control data for the products advertised on Ascend's website that should exist, given industry standards.

A

With respect to vendor communications and research and manufacturing documents, Vention presented credible evidence that some documents were not disclosed when requested and that additional documents of the sort may exist that have not have not been disclosed at all. However, in response, Pappas credibly testified that he reasonably attempted to comply with his discovery obligations as to these documents, even though he admitted to inadvertently missing certain documents. Further, Pappas was compliant with further requests as to these documents.

Specifically, as to vendor information, Pappas voluntarily produced material records from Redacted, the vendor with whom he worked to build his machine, early in discovery. Pappas admitted to missing an e-mail string with vendor Redacted, which Vention later received through subpoena of Redacted, but he maintained that he produced all other communications. With respect to testing and manufacturing records, Pappas testified that he inadvertently missed one document, which he produced upon further request. However, Pappas credibly testified that there were no undisclosed documents in his custody or control and asserted that his recordkeeping was not sophisticated as he was a one-person startup. Further, he stated that other research documents do not exist because he did not keep thorough records of research and development activities. Thus, the Court finds that, Pappas's production of these documents was not so deficient and less than forthcoming as to require a forensic examination.

Vention also complains that the documentation regarding specifications and quality control data or the products advertised on Ascend's website is inadequate. Mark Saab testified credibly regarding medical device industry standards and that it is essential to contain equipment specification sheets both to provide a "recipe" to produce a reliable product and to ensure that specific product items can be identified in the event of a recall. Pappas testified that he simply did not create many of the documents that Saab testified would be expected to exist based on industry standards. Pappas also testified that he did not maintain any strength testing or dimensional data for the products listed on the website. Pappas cited to the phrase "spot check samples" throughout the lab notebook as evidence of...

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