IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11–cv–01961–REB–KMT

ENERGY INTELLIGENCE GROUP, INC., and

ENERGY INTELLIGENCE GROUP (UK) LIMITED,

Plaintiffs,

v. 

WELLS FARGO SECURITIES, LLC, f/k/a WACHOVIA CAPITAL MARKETS, LLC, 

Defendant.

______________________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Kathleen M. Tafoya

This case comes before the court on amendment of the discovery deadlines in this case

and consideration of a recommendation that the District Court consider vacating the currently

scheduled trial in favor of resetting in the early part of 2013.

This court heard oral argument on “Plaintiffs’ Motion to Compel Discovery From

Defendant by a Date Certain and Request for a Fourth Extension of Expert Witness Deadlines”

[Doc. No. 65] on May 16, 2012. At that time the parties orally addressed the impending

discovery deadlines.

On March 16, 2012, the plaintiffs were allowed to file an Amended Complaint. See First

Amended Complaint and Jury Demand [Doc. No. 56]. With the filing of that Amended

Complaint, the case went from a single allegation of copyright infringement associated with a

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June 7, 2011 work to a complaint alleging hundreds of copyright violations of multiple

copyrighted works spanning a ten year publication period. Id. 

Since that time, this court has addressed several requests for extension of various

discovery dates in the case, see Minute Order dated April 11, 2012 [Doc. No. 64] and Minute

Order dated March 16, 2012 [Doc. No. 57], and has addressed several discovery disputes arising

from the greatly magnified claims. During the course of the hearings, this court has become

aware that over the time period of the alleged copyright violations, the defendant Wells Fargo

Securities, LLC, f/k/a Wachovia Capital Markets, LLC, (hereinafter “Wells Fargo”) has been

involved in multiple mergers and acquisitions which bear on certain of the copyright

infringement claims herein. The sheer volume of electronic discovery which has been

occasioned by the Amended Complaint and the difficulty involved in retrieving emails and other

relevant documents from company servers where the companies, in some instances, no longer

exist, has proved challenging at the least. This is especially true considering that certain alleged

infringements were accomplished by the forwarding of emails containing the alleged copyrighted

works to persons who no longer are working for Wells Fargo and who may have never actually

worked for Wells Fargo. Searching for discoverable information has involved utilizing thirdparty software which is no longer functional and has required that special databases be prepared

by outside vendors at considerable cost to the parties and considerable time expended. 

This court has concluded that the present discovery deadlines are no longer workable

given the broad scope of relevant evidence for the hundreds of alleged copyright violations and

in spite of the parties’ diligent efforts to timely comply with the previously established deadlines.

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Additionally, given the significant expansion of the case, the parties are now seeking a

trial period of between eight and ten days.

WHEREFORE, for the foregoing reasons, I respectfully RECOMMENDED that the

District Court vacate its currently scheduled trial now set to commence on September 24, 2012 at

8:30 a.m. and its previously set Trial Preparation Conference set for September 7, 2012 at 3:00

p.m. and that a new trial be set no earlier than March, 2013.

It is further RECOMMENDED that should the District Court agree with re-setting the

trial date in this matter, the following new discovery deadlines be imposed:

Affirmative Expert Disclosure August 2, 2012

Rebuttal Expert Disclosure September 2, 2012

Discovery Cut Off October 2, 2012

Motions Re Fed. R. Evid. 702 October 2, 2012

Dispositive Motion Deadline November 15, 2012

ADVISEMENT REGARDING OBJECTIONS TO THIS RECOMMENDATION

The parties have been consulted by this court as to all recommended dates and have

agreed to the proposed discovery schedule, including re-setting the trial. The parties have

advised they will file no objections to this Court’s recommendations herein.

Dated this 23 day of May, 2012.

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