Cases

Jeff Parmet and Associates specializes in information technology disputes involving software failure, intellectual property, computer forensics, and electronic discovery. We apply our years of information technology experience to the investigation, analysis and reporting of findings and opinions in disputes and investigations involving computers, data or software to help our clients address the complex technical issues needed to cost-effectively resolve such disputes. We serve our clients as consulting or testifying experts, as required. Attorneys and IT managers requiring expert assistance in the areas of software failure, intellectual property, computer forensics, and electronic discovery are invited to contact Jeff Parmet and Assocates for a private consultation.

Following are several illustrative cases that may be of interest to you. Litigation consultants from Jeff Parmet and Associates were not involved in offering testimony in any of these cases.

Software Failure

Triple Point Technology, Inc. v. Transammonia, Inc.

NY Supreme Ct., NY County, Index No. 603950/2001, July 2002 (Cahn, J.H.) - In a software failure action brought by software developer Triple Point against commodity-trading company Transammonia for recovery of unpaid fees for services under a consulting agreement, plaintiff moved to dismiss defendant's six counterclaims. Plaintiff and defendant had entered into:

• a software-license agreement for plaintiff's commodity-trading software;
• a consulting agreement in which plaintiff would develop interfaces to defendant's PeopleSoft accounting software; and
• a maintenance agreement (not central to the action).

The court dismissed defendant's first counterclaim for breach of the software-license agreement, notwithstanding significant alleged deficiencies in the software, finding that the license agreement provides that the software was sold "as is."

The court refused, however, plaintiff's motion to dismiss defendant's second through sixth counterclaims for breach of the consulting agreement, fraudulent inducement, common-law fraud, negligent misrepresentation and recession. The court's refusal is based on defendant's allegations that plaintiff had:

• failed to deliver five of the six promised interfaces;
• falsely represented in response to defendant's RFP that it had the capability of developing the interfaces, that it had already successfully developed such interfaces for another client and that defendant relied on such representations;
• appeared to hold specialized skill and expertise with respect to its ability to develop the interfaces.

Click here to retrieve entire opinion.

Electronic Discovery

Zubulake v. UBS Warburg LLC, 2003 WL 21087136

(S.D.N.Y. May 13, 2003) - Cost-shifting criteria modified. Respondent bears cost of producing electronic records that are "accessible," which the court defines as a) active, online data - usually stored on hard drives; b) near-line data, which includes removable media retrievable by robotic devices; and c) offline storage/archives, including removable backups that are easily restored and readily searchable.

For "inaccessible" electronic records, which the court defines as those archived on difficult-to-restore backup tapes, as well as erased, fragmented or damaged files requiring extensive recovery efforts, a small sample must first be taken and put to a more traditional "undue burden" test (i.e., cost-benefit analysis) before a determination on cost shifting can be made. The court relies, with several modifications, on the "gold standard" cost-shifting criteria of Rowe Entertainment, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 429 (S.D.N.Y. 2003).

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Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7 2008)

Electronic Discovery Abuse Results in Waiver of Patent Rights

On March 21, 2007 the U.S. District Court for the Southern District of California entered an Order finding in favor of Defendant Broadcom Corporation and against Plaintiff Qualcomm Incorporated, that two Qualcomm patents were unenforceable due to waiver. After a jury verdict, Broadcom again demanded discovery of Qualcomm’s records that previously had been concealed, but whose possible existence was only revealed during Broadcom’s cross-examination of a Qualcomm witness on one of the last days of trial. The court found that thereafter, after over three more months of denials, refusals, and opposition, Qualcomm produced over 230,000 pages of emails, company correspondence, and memoranda.

The court found that Qualcomm had intentionally engaged in aggravated litigation abuse (1) in discovery through Qualcomm’s constant stonewalling, concealment, and repeated misrepresentations concerning existing corporate documentary evidence that would have revealed the fullness of the corporate plan; and (2) in trial through Qualcomm’s presentation of numerous witnesses who steadfastly testified falsely denying even awareness, even after the truth was discovered and exposed by the document production.

The Court also found by clear and convincing evidence that Qualcomm counsel participated in an organized program of litigation misconduct and concealment throughout discovery and trial, by concealing the existence of thousands of pages of emails and electronic documents, which were clearly within the scope of the discovery requests, and that were finally produced four months post-trial.

On August 7, 2007 the Court found in favor of Broadcom and against Qualcomm that Qualcomm had indeed waived its right to enforce its patents due to its inequitable conduct.

Click here to retrieve entire opinion.

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