United States District Court, D. Nebraska
INFOGROUP, INC., Delaware corporation; INFOUSA, INC., Delaware corporation; and INFOUSA MARKETING, INC., Delaware corporation; Plaintiffs,
VINOD GUPTA, and DATABASEUSA.COM LLC, a Nevada limited-liability company; Defendants.
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge.
case has been pending for over three years, all parties have
changed counsel representation during the course of the
litigation, and after ruling on three separate (but in many
respects duplicative) motions to dismiss, Plaintiffs'
claims are now alleged in a sixth version of the complaint.
(Filing No. 227). In addition, the court has ruled on motions
to disqualify counsel, to compel discovery, and for summary
judgment. The court's active involvement in trying to
manage the discovery phase alone dates back two years-to the
day. (Filing No. 140).
there are motions asking the court to set aside its prior
protective order (entered on the parties' joint
stipulation), (Filing No. 241); to sanction Plaintiffs for
alleged “wrongful acts of concealment and complicity in
procurement of highly confidential Database information,
” (Filing No. 256); and for a protective order and an
order regarding the scheduling of discovery. (Filing No.
262). Defendant Gupta again raises conflict of interest
issues previously addressed in the court's order denying
disqualification of Plaintiffs' counsel. Compare, Filing
No. 199 and Filing No. 263-7, at CM/ECF p. 5. Moreover,
Defendants' reply brief on the pending motion for
sanctions challenges a declaration signed by Plaintiffs'
counsel, (Filing No. 268), stating “the descriptions in
paragraphs 8 and 9 of the [declaration] require examination
in a deposition, ” (Filing No. 268, at CM/ECF p. 2).
According to defense counsel, Plaintiffs' counsel
“would have to be the first witness, ” (Filing
No. 263-6), and allegedly “may become, and may have
already become . . . a material witness” in this case.
(Filing No. 264, at CM/ECF p. 8).
pending sanctions issues and allegations raised their ugly
head at least three months ago, but until the pending motions
were filed, no one asked the undersigned magistrate judge for
assistance in managing or quelling the escalating
controversy. But with written motions now filed, and
extensive responses and replies of record, the court presided
over an extensive (and very forthright) conference with
counsel to express the court's concerns with the
parties' failure to move forward toward resolution of
this case, and with the vitriolic quagmire presented to the
court through the parties' recent filings.
stated, rather than progressing to trial or settlement, the
case is unravelling while simultaneously devouring court
on the court's own motion, IT IS ORDERED:
depositions currently scheduled for the afternoon of
September 14, 2017, will be held on that date. The
parties' respective deponents shall timely attend, and in
the absence of a valid claim of attorney-client privilege or
work product protection, they shall fully answer all
questions posed. Counsel shall contact the court during those
depositions if any deponent fails to fully comply with this
order, and to that end, the court has set aside the afternoon
of September 14, 2017 to take phone calls from counsel and,
if necessary, make rulings or preside over the deposition(s)
settlement conference will be held during the week of October
16, 2017, commencing in Courtroom No. 2 of the Lincoln
Federal Building. Michael Iaccarino, President and CEO of
Plaintiff InfoGroup, and Vinod Gupta, on behalf of himself
and Defendant Database, along with their respective counsel,
shall personally attend the conference and shall be prepared
to participate and negotiate a settlement of this case. The
parties shall immediately confer to select a
mutually available date and shall advise the court
3. If a
party fails to comply with paragraph (2) of this order,
costs, attorney fees, and sanctions may be imposed by the
court against the non-complying party, counsel for that
party, or both.
Prior to the settlement conference, counsel shall discuss
settlement with their respective clients (and any insurance
representatives), and shall exchange with opposing counsel
proposals for settlement so the parameters of settlement have
been explored well in advance.
Counsel shall submit a confidential settlement statement (not
to exceed 20 pages in length) to the undersigned magistrate
judge by email to firstname.lastname@example.org no later
than October 6, 2017, setting forth the relevant positions of
the parties concerning factual issues, issues of law,
damages, and the settlement negotiation history of the case,
including a recitation of any specific demands and offers
that have been conveyed. Copies need not be served on
opposing counsel or parties.
Notwithstanding the provisions of Rule 408, Fed. R. Evid.,
all statements made by the parties relating to the substance
or merits of the case, whether written or oral, made for the
first time during the settlement conference shall be deemed
to be confidential and shall not be admissible in evidence
for any reason in the trial of the case, should the case not
settle. This provision does not preclude admissibility in
other contexts, such as pursuing a motion for sanctions
regarding the settlement conference.
court's ruling on the pending motions for protective
order, for sanctions, and to set a discovery schedule,
(Filing Nos. 241, 256, and 262), remain pending. These
motions will be promptly ruled on if this case is not settled
during the week of October 16, 2017.
any dispute arises hereafter which threatens to derail the
parties' ability to thoroughly engage in informed
settlement discussions during the week of October 16, 2017,
counsel shall ...