On Appeal from Superior Court, Chittenden Unit, Civil Division Helen M. Toor, J.
Lawrence Kenney, South Burlington, and Franklin Kochman, Burlington, for Plaintiff-Appellant.
Craig S. Nolan and Kevin A. Lumpkin of Sheehey Furlong & Behm P.C., Burlington, for Defendants-Appellees.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. In this dispute between two computer software companies, SynEcology Partners, L3C challenges the trial court's order dismissing its complaint against Business RunTime, Inc. stemming from its failure to comply with Business RunTime's discovery requests. For the reasons stated herein, we affirm.
¶ 2. In 2008, SynEcology's founders, Edward Grossman and Jeanne Conde, sold the company's assets to Lawrence Kenney. Grossman and Conde subsequently started a new software company, Business RunTime. In August 2011, SynEcology filed a civil complaint in Chittenden Superior Court against Business RunTime, Edward Grossman, Jeanne Conde, and two former SynEcology employees, Thomas Reynolds and Toby Leong, for alleged fraud, theft of intellectual property, industrial sabotage, computer crimes, burglary, larceny, willful breaches of nondisclosure and employee contracts, theft and disclosure of trade secrets, and tortious interference with contractual relations. What followed was a protracted discovery phase, culminating in Business RunTime's motion for contempt, sanctions, and attorneys' fees, filed on July 23, 2014, which ultimately resulted in dismissal of SynEcology's complaint.
¶ 3. On April 17, 2012, Business RunTime filed its first set of interrogatories and production requests, due May 17, 2012. Among other things, Business RunTime specifically requested all emails relevant to SynEcology's claims. On May 22, 2012, and again on June 1, 2012, Business RunTime made inquiries as to when it could expect a response to the production request. On June 20, 2012, Business RunTime moved to compel SynEcology to respond to the interrogatories and production requests. The motion was granted on August 3, 2012.
¶ 4. SynEcology filed its first set of responses on August 31, 2012, three months after the deadline for Business RunTime's initial request. Those responses contained a CD with PDF files purporting to include all relevant emails. Some of the emails were in chronological order, although none were in native format, appearing instead in list form with no indication as to where one email ended and another began. Although the PDF files included some emails from Mr. Kenney's work account (the Outlook account) and the inboxes of two SynEcology employees, there was only one email from the year 2010, and there were no emails from Mr. Kenney's personal account (the Comcast account). In addition to filing its responses, SynEcology objected to the production of some emails "as to attorney-client communication, communication with retained experts and spousal communications, " and indicated that "[w]ithout waiving the objection and subject to the objection, " it would "provide the emails requested, subject to a protective order."
¶ 5. On October 17, 2012, Business RunTime offered SynEcology a proposed protective order covering information and documents that genuinely fell within the scope of Vermont Rule of Civil Procedure 26(c)(7), but noted its skepticism that all of the materials withheld truly fell within the scope of the Rule and reserved the right to object to discovery materials designated as privileged. Business RunTime specifically requested the native electronic formats of the emails produced, including the complete email inboxes of Mr. Kenney and the two relevant SynEcology employees.
¶ 6. On February 25, 2013, SynEcology signed the protective order. On March 1, 2013, nearly eleven months after the initial request, SynEcology responded to the remainder of Business RunTime's requests, indicating that by the next week, it would "produce a CD with as many of the documents as [it] can assemble in native format. This will include all of the Outlook files."
¶ 7. Four months later, on June 5, 2013, SynEcology supplemented its discovery responses, providing a CD with emails from Mr. Kenney, Thomas Barkley, and Joseph Luo, but no emails from Mr. Kenney's Comcast account, and no emails in native format. Eighty-six of the emails provided on June 5 were redacted on grounds of privilege. SynEcology indicated the date, time, sender, and recipient of the privileged emails, but provided no privilege log.
¶ 8. Following this supplemental response, Business RunTime made three separate attempts to obtain the emails in native format, as well as the remainder of the emails dated 2010 from Mr. Kenney's Outlook account and all relevant emails from his Comcast account. These attempts, in December 2013, February 2014, and March 2014, proved fruitless.
¶ 9. On March 4, 2014, nearly two years after its initial production request, Business RunTime filed a second motion to compel production. The trial court granted the motion on May 22, 2014, ordering SynEcology to produce, by July 1, 2014, all emails "constituting, showing, referring or relating to any of the allegations in the complaint" in ...