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Case 3:14-cv-01849-K Document 729 Filed 10/27/16

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UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ZENIMAX MEDIA, INC. and
ID SOFTWARE, LLC,
Plaintiffs,
v.
OCULUS VR, LLC, et al.,
Defendants.

No. 3:14-CV-1849-K (BF)

ORDER
Before the Court is Plaintiffs Motion (A) to Permit Disclosure of Any Demonstrably
Inaccurate Representations Made to Court and (B) to Compel Production of Hard Drive [ECF No.
690] (Motion to Permit Disclosure and to Compel) referred to the United States Magistrate Judge
for determination. Electronic Order Referring Mot., ECF No. 728. Upon consideration, the Motion
to Permit Disclosure and to Compel [ECF No. 690] is GRANTED in part and DENIED in part.
In this motion, Plaintiffs state that Defendants object to the disclosure of information that the
independent expert Andrew S. Rosen finds as factually inaccurate and demonstrably inaccurate
representations. Mot. 1, ECF No. 690. Plaintiffs state that Mr. Rosen has made the following
statements:

statements and representations that have been sworn to and are before the court are factually
inaccurate,

opinions expressed in expert reports that are before the court that are demonstrably
inaccurate, and

something within an image that leads me to question the authenticity, reliability or integrity
of an image or its contents.

Mot. 2, ECF No. 690. Plaintiffs state that prior to the issuance of Mr. Rosens reports, and in
response to Mr. Rosens inquiry directed to the parties, Plaintiffs informed him that he was free to
comment on and provide further elaboration of his troubling findings, but that Defendants objected

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to the full disclosure and took the narrow position that Mr. Rosen must restrict his comments to the
extent that it is relevant to his analysis of the five specific issues before him. Mot. 3, ECF No. 690.
In addition, Plaintiffs seek John Carmacks hard drive based on Mr. Rosens findings that someone
deleted critical log files on the hard drive. Mot. 4, ECF No. 690. Plaintiffs further seek from
Defendants any communications with Mr. Carmack relating to the April 2014 collection of his hard
drive for imaging that is redacted for privilege, if necessary. Mot. 10, ECF No. 690.
Defendants argue in their response that the Court already rejected Plaintiffs request for direct
access to the hard drive images and nothing in Mr. Rosens reports should change the Courts prior
ruling. Resp. 2, ECF No. 709. In addition, Defendants argue that Plaintiffs request to allow Mr.
Rosen to comment on any statements made by the parties about the Carmack MacBook, the Cooper
ThinkPad, and the subject USB drive is contrary to the Courts recent ruling that Mr. Rosen was to
address only the questions urged by Plaintiffs as the basis for their demand for the Carmack and
Cooper hard drive images, and any other matter agreed to by the parties. Resp. 7, ECF No. 709.
Moreover, Defendants argue that Mr. Rosen is not familiar with the facts of this case or issues in
controversy beyond what was necessary to perform his limited task. Resp. 8, EC No. 709.
Plaintiffs argue in their reply that Defendants offer no reason why Mr. Rosen should not be
directed to speak completely regarding the factually inaccurate and demonstrably inaccurate
representations he identified. Reply 1, ECF No. 711. Plaintiffs argue that Defendants response does
not dispute Plaintiffs contention that Mr. Rosens findings directly challenge the truthfulness of
sworn statements that are before the Court. Reply 1-2, ECF No. 711. In addition, Plaintiffs reiterate
that Mr. Rosens findings present a compelling basis for ordering Defendants to produce an image
of the hard drives at issue. Reply 2, ECF No. 711. Plaintiffs contend that they intend to offer the hard
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drives at trial as evidence showing Defendants misconduct and efforts to hide their misconduct in
light of Mr. Rosens findings. Reply 3, ECF No. 711. In the sur-reply, Defendants state that
Plaintiffs claim in their reply that Defendants forensic expert conducted a personal analysis of the
MacBook hard drive is not accurate and that the forensic analysis was based on system logs from the
MacBook image that have already been produced. Sur-Reply 1, ECF No. 722. Defendants argue that
Plaintiffs own failure to test the produced logs is not a default by Defendants of their discovery
obligations and does not support the extraordinary remedy of awarding Plaintiffs direct access to
Defendants electronic repositories. Sur-Reply 1, ECF No. 722.
Upon consideration of the foregoing, Plaintiffs request to have Mr. Rosen comprehensively
inform the parties about the factually inaccurate and demonstrably inaccurate representations
is GRANTED. Plaintiffs request for redacted communications with Mr. Carmack relating to the
April 2014 collection of his hard drive for imaging is also GRANTED. Defendants shall provide this
information within two weeks of the entry of this Order, unless the parties agree to a different date.
However, Plaintiffs request for direct access to Defendants devices is DENIED. Any other request
not specifically granted herein is DENIED.
SO ORDERED, this 27th day of October, 2016.

_____________________________________
PAUL D. STICKNEY
UNITED STATES MAGISTRATE JUDGE