1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VIBRANTCARE REHABILITATION, No. 2:20-cv-00791 MCE AC INC., 12 Plaintiff, 13 ORDER v. 14 KIRAN DEOL, and John and Jane Does 15 1through 10, 16 Defendants. 17 18 This action was filed on April 16, 2020. ECF No. 1. The operative First Amended 19 Complaint is located at ECF No. 23. Presently before the court is plaintiff’s motion to compel a 20 forensic examination of defendant Kiran Doel’s email and electronic devices. ECF No. 63. The 21 parties filed the required joint statement, and several declarations in support of the joint 22 statement. ECF Nos. 65, 66, 67, 68. Fact discovery in this action closes on February 7, 2024. 23 ECF No. 59. The motion to compel was submitted on the papers. ECF No. 69. For or the 24 reasons set forth below, the motion is DENIED. 25 I. BACKGROUND 26 Plaintiff VibrantCare is one of the largest providers of outpatient physical and 27 occupational therapy services in the Western United States. ECF No. 23 at 2. Plaintiff hired 28 defendant Kiran Deol in March of 2018 as a corporate recruiter. Id. In that role, Deol was 1 responsible for finding, soliciting, and hiring qualified therapists for VibrantCare’s operations. 2 Doel later promoted to Director of Recruiting, where she was responsible for the oversight of 3 recruiting operations in multiple states. Id. According to VibrantCare’s operative Amended 4 Complaint, Doel had access to VibrantCare’s confidential information and trade secrets regarding 5 its vendor and referral network, patient scheduling system, business strategies, costs and payment 6 structure, margins, and other highly sensitive information, which she used to attract candidates. 7 Id. 8 On January 19, 2020, Doel gave notice of her resignation effective January 31, 2020. Id. 9 VibrantCare alleges that it later discovered that by the time she resigned, Deol had been offered 10 and accepted the position of Director of Talent Acquisition for Golden Bear Physical Therapy and 11 Sports Injury Center, Inc. (“Golden Bear”), a direct competitor of VibrantCare’s in Northern 12 California. Id. Plaintiff alleges that Doel misappropriated a significant amount of VibrantCare’s 13 confidential, proprietary, and trade secret information before her resignation; specifically, Deol 14 allegedly emailed VibrantCare’s highly sensitive information and confidential patient information 15 to her personal e-mail account in the days before her final workday with VibrantCare. Id. at 3. 16 Plaintiff alleges that defendant violated the VibrantCare Employee Agreement she had signed, 17 and brings a breach of contract claim. ECF No. 23. Plaintiff also brings claims for unfair 18 competition, breach of fiduciary duty, violation of the Defend Trade Secrets Act, and violation of 19 the California Uniform Trade Secrets Act. Id. at 9-13. 20 The parties have been progressing through discovery. VibrantCare asserts that it has 21 served multiple discovery requests seeking to uncover the extent of Doel’s misappropriation. 22 Specifically, VibrantCare believes that Doel misappropriated the following documents prior to 23 terminating her employment with VibrantCare: (1) a list of 162 physical therapy candidates with 24 whom she was in contact on behalf of VibrantCare (“Candidate List”); (2) a highly confidential 25 analysis prepared by other VibrantCare employees analyzing VibrantCare’s referral sources and 26 setting forth VibrantCare’s business strategy in working with those sources in the future 27 (“Referral Log Analysis”); (3) a highly confidential report detailing the percentages of cancelled 28 appointments at VibrantCare locations in several states (“Patient Cancel Report”); and (4) other 1 confidential information pertaining to VibrantCare’s vendors and business strategies. ECF No. 2 65 at 4. 3 In response to a request for production seeking all documents which refer or relate to 4 information Doel acquired at VibrantCare, Doel stated that she produced a document which was 5 initially an attachment to an email, but that she deleted the original email in or around February 6 2020. Nordlander Dec., ¶ 4, Ex. B, Deol’s Response To Request for Production No. 17. Doel 7 wrote, “[a]t or near to the time when Defendant deleted the Deleted Email, Defendant retitled the 8 document to its present form solely to ensure that she did not directly interact for business 9 purposes with any candidates with whom she was involved in recruiting while working for 10 VibrantCare. Defendant has no present memory of any other email subject to this request for 11 production that was sent from her VibrantCare email account to any other of her email accounts 12 and thereafter deleted.” Id. The produced document is the “Candidate List—the list of 162 13 VibrantCare physical therapy candidates Deol prepared and forwarded to her personal email and 14 saved her to work computer at Golden Bear.” ECF No. 65 at 5. VibrantCare contends that 15 Doel’s response “vaguely alludes to Deol having deleted additional responsive documents, [and] 16 is a tacit acknowledgement of the fact that Deol has failed to produce the Patient Cancel Report 17 and Referral Log Analysis emails that Deol transferred to her personal email account on January 18 28, 2020, three days before the conclusion of Deol’s employment.” Id. at 6. 19 VibrantCare served subsequent requests for production seeking, specifically, the Patient 20 Cancel Report and the Referral Log Analysis, but Doel responded that she had no responsive 21 documents to produce. ECF No. 65 at 5. VibrantCare then served Interrogatory No. 17, which 22 directed Deol to “[s]tate the time, date, and reason YOU deleted or destroyed any DOCUMENT 23 containing or relating to VIBRANTCARE BUSINESS INFORMATION that YOU sent from 24 kdeol@vibrantcarerehab.com to any non-VIBRANTCARE email address . . . .,” and Deol 25 repeated her earlier response that she deleted the Candidate List email at some point in February 26 2020, but that she does not recall deleting any other emails. Nordlander Dec., ¶ 7, Ex. E. Finally, 27 VibrantCare served Request for Production No. 52 and 54 directing Doel to produce the digital 28 copies of her desktop computer and Kirandeol7@hotmail.com email account that Deol has 1 indicated her former attorneys prepared. Deol objected and has refused to make the production. 2 The parties met and conferred and, unable to resolve the issue, VibrantCare brought this motion 3 for a forensic examination of plaintiff’s devices. 4 II. LEGAL STANDARDS 5 The scope of discovery in federal cases is governed by Federal Rule of Civil Procedure 6 26(b)(1). The current Rule states: 7 Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged 8 matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of 9 the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, 10 the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely 11 benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. 12 13 Fed. R. Civ. P. 26(b)(1). Evidence is relevant if: (a) it has any tendency to make a fact more or 14 less probable than it would be without the evidence; and (b) the fact is of consequence in 15 determining the action. Fed. R. Evid. 401.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VIBRANTCARE REHABILITATION, No. 2:20-cv-00791 MCE AC INC., 12 Plaintiff, 13 ORDER v. 14 KIRAN DEOL, and John and Jane Does 15 1through 10, 16 Defendants. 17 18 This action was filed on April 16, 2020. ECF No. 1. The operative First Amended 19 Complaint is located at ECF No. 23. Presently before the court is plaintiff’s motion to compel a 20 forensic examination of defendant Kiran Doel’s email and electronic devices. ECF No. 63. The 21 parties filed the required joint statement, and several declarations in support of the joint 22 statement. ECF Nos. 65, 66, 67, 68. Fact discovery in this action closes on February 7, 2024. 23 ECF No. 59. The motion to compel was submitted on the papers. ECF No. 69. For or the 24 reasons set forth below, the motion is DENIED. 25 I. BACKGROUND 26 Plaintiff VibrantCare is one of the largest providers of outpatient physical and 27 occupational therapy services in the Western United States. ECF No. 23 at 2. Plaintiff hired 28 defendant Kiran Deol in March of 2018 as a corporate recruiter. Id. In that role, Deol was 1 responsible for finding, soliciting, and hiring qualified therapists for VibrantCare’s operations. 2 Doel later promoted to Director of Recruiting, where she was responsible for the oversight of 3 recruiting operations in multiple states. Id. According to VibrantCare’s operative Amended 4 Complaint, Doel had access to VibrantCare’s confidential information and trade secrets regarding 5 its vendor and referral network, patient scheduling system, business strategies, costs and payment 6 structure, margins, and other highly sensitive information, which she used to attract candidates. 7 Id. 8 On January 19, 2020, Doel gave notice of her resignation effective January 31, 2020. Id. 9 VibrantCare alleges that it later discovered that by the time she resigned, Deol had been offered 10 and accepted the position of Director of Talent Acquisition for Golden Bear Physical Therapy and 11 Sports Injury Center, Inc. (“Golden Bear”), a direct competitor of VibrantCare’s in Northern 12 California. Id. Plaintiff alleges that Doel misappropriated a significant amount of VibrantCare’s 13 confidential, proprietary, and trade secret information before her resignation; specifically, Deol 14 allegedly emailed VibrantCare’s highly sensitive information and confidential patient information 15 to her personal e-mail account in the days before her final workday with VibrantCare. Id. at 3. 16 Plaintiff alleges that defendant violated the VibrantCare Employee Agreement she had signed, 17 and brings a breach of contract claim. ECF No. 23. Plaintiff also brings claims for unfair 18 competition, breach of fiduciary duty, violation of the Defend Trade Secrets Act, and violation of 19 the California Uniform Trade Secrets Act. Id. at 9-13. 20 The parties have been progressing through discovery. VibrantCare asserts that it has 21 served multiple discovery requests seeking to uncover the extent of Doel’s misappropriation. 22 Specifically, VibrantCare believes that Doel misappropriated the following documents prior to 23 terminating her employment with VibrantCare: (1) a list of 162 physical therapy candidates with 24 whom she was in contact on behalf of VibrantCare (“Candidate List”); (2) a highly confidential 25 analysis prepared by other VibrantCare employees analyzing VibrantCare’s referral sources and 26 setting forth VibrantCare’s business strategy in working with those sources in the future 27 (“Referral Log Analysis”); (3) a highly confidential report detailing the percentages of cancelled 28 appointments at VibrantCare locations in several states (“Patient Cancel Report”); and (4) other 1 confidential information pertaining to VibrantCare’s vendors and business strategies. ECF No. 2 65 at 4. 3 In response to a request for production seeking all documents which refer or relate to 4 information Doel acquired at VibrantCare, Doel stated that she produced a document which was 5 initially an attachment to an email, but that she deleted the original email in or around February 6 2020. Nordlander Dec., ¶ 4, Ex. B, Deol’s Response To Request for Production No. 17. Doel 7 wrote, “[a]t or near to the time when Defendant deleted the Deleted Email, Defendant retitled the 8 document to its present form solely to ensure that she did not directly interact for business 9 purposes with any candidates with whom she was involved in recruiting while working for 10 VibrantCare. Defendant has no present memory of any other email subject to this request for 11 production that was sent from her VibrantCare email account to any other of her email accounts 12 and thereafter deleted.” Id. The produced document is the “Candidate List—the list of 162 13 VibrantCare physical therapy candidates Deol prepared and forwarded to her personal email and 14 saved her to work computer at Golden Bear.” ECF No. 65 at 5. VibrantCare contends that 15 Doel’s response “vaguely alludes to Deol having deleted additional responsive documents, [and] 16 is a tacit acknowledgement of the fact that Deol has failed to produce the Patient Cancel Report 17 and Referral Log Analysis emails that Deol transferred to her personal email account on January 18 28, 2020, three days before the conclusion of Deol’s employment.” Id. at 6. 19 VibrantCare served subsequent requests for production seeking, specifically, the Patient 20 Cancel Report and the Referral Log Analysis, but Doel responded that she had no responsive 21 documents to produce. ECF No. 65 at 5. VibrantCare then served Interrogatory No. 17, which 22 directed Deol to “[s]tate the time, date, and reason YOU deleted or destroyed any DOCUMENT 23 containing or relating to VIBRANTCARE BUSINESS INFORMATION that YOU sent from 24 kdeol@vibrantcarerehab.com to any non-VIBRANTCARE email address . . . .,” and Deol 25 repeated her earlier response that she deleted the Candidate List email at some point in February 26 2020, but that she does not recall deleting any other emails. Nordlander Dec., ¶ 7, Ex. E. Finally, 27 VibrantCare served Request for Production No. 52 and 54 directing Doel to produce the digital 28 copies of her desktop computer and Kirandeol7@hotmail.com email account that Deol has 1 indicated her former attorneys prepared. Deol objected and has refused to make the production. 2 The parties met and conferred and, unable to resolve the issue, VibrantCare brought this motion 3 for a forensic examination of plaintiff’s devices. 4 II. LEGAL STANDARDS 5 The scope of discovery in federal cases is governed by Federal Rule of Civil Procedure 6 26(b)(1). The current Rule states: 7 Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged 8 matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of 9 the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, 10 the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely 11 benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. 12 13 Fed. R. Civ. P. 26(b)(1). Evidence is relevant if: (a) it has any tendency to make a fact more or 14 less probable than it would be without the evidence; and (b) the fact is of consequence in 15 determining the action. Fed. R. Evid. 401. Relevancy to the subject matter of the litigation “has 16 been construed broadly to encompass any matter that bears on, or that reasonably could lead to 17 other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. 18 v. Sanders, 437 U.S. 340, 351 (1978). Relevance, however, does not establish discoverability; in 19 2015, a proportionality requirement was added to Rule 26. Under the amended Rule 26, 20 discovery must be proportional to the needs of the case. 21 A party seeking to compel discovery has the initial burden to establish that its request is 22 proper under Rule 26(b)(1). If the request is proper, the party resisting discovery has the burden 23 of showing why discovery was denied; they must clarify and support their objections. 24 Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). General or boilerplate 25 objections, without explanation, are not prohibited but are insufficient as a sole basis for an 26 objection or privilege claim. Burlington Northern & Santa Fe Ry. v. United States Dist. Court, 27 408 F.3d 1142, 1149 (9th Cir. 2005). 28 //// 1 III. DISCUSSION 2 In the absence of evidence to the contrary, plaintiff is required to accept defendant’s 3 sworn statement that responsive documents/devices do not exist. See e.g., Sanchez v. County of 4 Sacramento Sheriff’s Dep’t, No. 2:19-CV-01545 MCE AC, 2021 WL 2292776, *3, 2021 U.S. 5 Dist. LEXIS 105549, *3 (E.D. Cal. June 4, 2021); Mootry v. Flores, 2014 WL 3587839, *2, 2014 6 U.S. Dist. LEXIS 98941, *4 (E.D. Cal. 2014) (“Defendants cannot be required to produce 7 documents that do not exist. Absent evidence to the contrary, which has not been presented, 8 Plaintiff is required to accept Defendants’ response no such documents exist.”). Here, Deol 9 submitted an affidavit stating that she has no responsive documents: “I deleted VibrantCare 10 emails from my personal email account [after ending work at VibrantCare], including the email 11 containing a list of prospective physical therapists. I separately maintained a copy of that attached 12 list on my Golden Bear issued laptop so that I would know the individuals that I should avoid 13 contacting so that VibrantCare would not accuse me of violating the non-solicitation provision it 14 claimed bound my post-employment actions.” ECF No. 68 at 1. 15 Plaintiff has failed to put forth any concrete evidence that that Doel is being untruthful in 16 her assertions or that she was incomplete in her search. Instead, plaintiff argues that Deol “claims 17 that she transferred VibrantCare’s confidential and trade secret information to her personal email 18 account for purposes of performing her job duties in the days prior to the end of her employment” 19 and VibrantCare believes – for no specific reason – that this statement is untrue. ECF No. 65 at 20 14. VibrantCare argues that a forensic examination is necessary because “forensic evidence that 21 Deol accessed, transferred, or modified the files at issue after her last day of work would disprove 22 this already highly dubious explanation.” Id. VibrantCare goes on to argue that “Deol also 23 claims that her destruction of evidence occurred before and was totally unrelated to VibrantCare 24 sending her a February 14, 2020 cease-and-desist letter. VibrantCare anticipates the forensic 25 examination will show that Deol’s destruction of evidence occurred after she had notice of 26 VibrantCare’s claims against her.” Id. VibrantCare has not identified any basis for its belief that 27 a forensic examination will undermine Doel’s statements. Twisting Doel’s responses to construe 28 them as “tacit admissions” of evidence destruction and generalized hunches that Doel is being 1 | untruthful are not enough to support this motion. Without a specific factual basis for defendant’s 2 || belief that Doel is being untruthful, the court will not order a forensic fishing expedition seeking 3 || to undermine her testimony. 4 IV. CONCLUSION 5 For the foregoing reasons, plaintiff's motion to compel a forensic investigation (ECF No. 6 || 66) 1s DENIED. 7 IT IS SO ORDERED. 8 || DATED: January 10, 2024 . 9 Ad Aterr— {U. te 10 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28