UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KONICA MINOLTA BUSINESS

SOLUTIONS, U.S.A. INC.,

Plaintiff,

Case No.: 15-11254

v.

HONORABLE VICTORIA A. ROBERTS

LOWERY CORPORATION D/B/A 

APPLIED IMAGING SYSTEMS, INC., et al.,

Defendants.

 /

ORDER MODIFYING DISCOVERY

This suit concerns allegations by Plaintiff, Konica Minolta Business Solutions,

U.S.A., Inc., that Defendants, Lowery Corporation, d/b/a Applied Imaging Systems, Inc.

and several former Konica Minolta employees, have unlawfully taken property and used

and disclosed confidential, trade secret, and proprietary information without Konica

Minolta’s consent and against it’s best interest. Before the Court are several objections

regarding the current discovery plan, in particular concerning the production of mirror

images of electronic devices. On November 30, 2015, the Court received several

objections to the production of mirror images of electronic devices. That afternoon, via

email, the Court ordered the parties to consider several possible modifications to the

discovery plan and to submit proposals about how to proceed by December 3, 2015. 

The parties agree to limit discoverable devices to exclude those devices which

were not connected to either Konica Minolta or Applied Imaging Systems computers or

networks. The parties also agree to presumptively exclude pictorial image files from

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being produced for other parties in the case. As a result, the Court orders the following

modifications: 

1. The scope of discovery of electronic devices capable of storing data will

be limited to those that have been utilized at or connected to any

computer or network of Konica Minolta or Applied Imaging Systems.

Discovery also includes email and cloud storage that was accessed on or

connected to a network at Konica Minolta. This is a non-exhaustive list,

and includes without limitation, the device list provided by Plaintiffs’s

expert, Spectrum, in Plaintiff’s December 3, 2015 email as well as any

devices or web-based services which Defendants have actual knowledge

of but that are not listed on the December 3, 2015 Spectrum report. 

2. Production of pictorial image files (JPEG, GIF, and like forms) are

presumptively excluded from being produced to other parties. Plaintiff may

request exceptions to this plan when it appears appropriate under the

circumstances; for example, an exception might be granted if it was shown

that an individual Defendant was likely to have taken a digital photo of

Konica Minolta property or proprietary information. This exclusion limits

production of individual files, but does not limit any Court order pertaining

to the production of complete device mirror copies. 

The parties still disagree about which parties’ expert is to conduct data analysis

of the mirror images and about how cost should be allocated. Consequently, the Court

orders the following procedures be used to analyze electronic data and devices: 

3. The Court will order the appointment of an independent master under Rule

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53 of the Federal Rules of Civil Procedure. The master will be an

independent expert who will make mirror copies of the pertinent devices,

conduct the initial decomposition of the mirror image files, and send the

file lists to defense counsel for review.

Pursuant Rule 53, each party must submit to the Court, via electronic

filing, a candidate for nomination as the master by Thursday, December

17, 2015. The recommendation will include a résumé or curriculum vitae

for each master. The parties shall not submit as their recommended

master anyone who would be disqualified under Rule 53(a)(2), which in

pertinent part states “A master must not have a relationship to the parties,

attorneys, action, or court that would require disqualification of a judge

under 28 U.S.C. § 455.” Because the focus is on an independent expert,

the Court does not expect to receive a nomination for a firm currently

retained by any of the parties. 

Under Rule 53(g) the Court will fix compensation of the master up front.

The Court has considered arguments made regarding how to allocate data

production and analysis costs. Initially, the Court intends to split the cost of

compensating the master among the parties, but the Court will revisit any

interim ruling, pursuant to Rule 53(g)(3), as discovery progresses and a

merits decision is reached.

4. As an alternative to the step three process, any Defendant seeking to optout of the above process may elect to enter into an agreement that tracks

the terms and conditions outlined in Plaintiff’s November 24th email, which

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is appended to the end of this order. 

5. In lieu of the selection of a special master, the Court will temporarily stay

the production of mirror images and privilege logs. The Court will reissue a

production deadline after receiving special master nominations. 

The conference call scheduled for December 9, 2015 at 1:00 pm is cancelled.

IT IS ORDERED

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: December 9, 2015

The undersigned certifies that a copy of this

document was served on the attorneys of

record by electronic means or U.S. Mail on

December 9, 2015.

s/Linda Vertriest 

Deputy Clerk

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