Cases
Jeff Parmet and Associates specializes
in information technology disputes involving software failure,
intellectual property, computer forensics, and electronic discovery. We apply our
years of information technology experience to the investigation, analysis
and reporting of findings and opinions in disputes and investigations
involving computers, data or software to help our clients address the
complex technical issues needed to cost-effectively resolve such disputes.
We serve our clients as consulting or testifying experts, as required.
Attorneys and IT managers requiring expert assistance in the areas of
software failure, intellectual property, computer forensics, and electronic discovery are invited to contact Jeff Parmet and Associates for a private consultation.
Following are several illustrative cases that may be of interest to you. Litigation consultants from Jeff Parmet and Associates were not involved in offering testimony in any of these cases.
Software Failure
Blue Line Media, Inc. v. Redmon Group, Inc.
December 20, 2008
JEFF PARMET AND ASSOCIATES ASSISTS BEAN, KINNEY & KORMAN AND BLUE LINE MEDIA IN WINNING $1.1 MILLION VERDICT AGAINST REDMON GROUP
Jeff Parmet and Associates announced today that an Alexandria Circuit Court jury awarded its client Blue Line Media a $1,138,500 jury verdict on December 17th on behalf of Blue Line Media, Inc. against the Alexandria website developer, Redmon Group, Inc.
According to the plaintiff’s attorneys Raighne Delaney and David Temeles of Bean, Kinney & Korman, Blue Line owned an internet law enforcement recruiting business located at www.lawenforcementjobs.com. Blue Line hired Redmon Group to design, build and deliver a custom website for the business. Redmon Group estimated the project would cost $598,441. Under the Virginia Uniform Computer Information Transactions Act, incorporated into the contract by law, Redmon Group had a duty to design, build and deliver the website in accordance with industry standards and practices. The evidence showed that Blue Line paid Redmon Group in excess of $543,000 before cancelling the contract when Redmon Group refused to allow an inspection of the website software, among other reasons.
Jeff Parmet and Associates’ industry standards expert Todd Trivett testified that Redmon Group failed to build and deliver the website in accordance with industry standards and practices. Specifically, Mr. Trivett found, through functional validation testing, that the vast majority of the website's promised functionality was either missing or defective. Mr. Trivett further opined that the causes of Redmon's failures were their material deviations from Project Management and Software Engineering standards including scope management, software estimation, and software testing.
Valuation expert Mark Vogel testified that the market value of the website that Redmon Group failed to deliver was $1.4 million. Redmon Group counterclaimed for $158,000 due to Blue Line's refusal to pay certain invoices. The jury found for Blue Line on its Complaint in the amount of $1,138,500. The jury found for Blue Line on Redmon Group's counterclaim.
“We were very pleased with the outcome of this verdict for our client Bean, Kinney & Korman and Blue Line Media,” said Jeff Parmet. “We feel that their expectations from Redmon Group were fair and in the end, that was recognized appropriately by the jury.”
Jeff Parmet is the founding principal of Jeff Parmet and Associates, and practices as a software expert in the areas of failed system implementations, software IP disputes, and electronic discovery.
Todd Trivett is a senior consultant at Jeff Parmet and Associates and specializes in Project Management and Software Engineering failure disputes.
The litigation consulting firm of Jeff Parmet and Associates provides software failure experts, software misappropriation experts, computer forensics experts and electronic discovery experts to assist law firms and their clients in resolving challenging IT issues that arise in such disputes.
Triple Point Technology, Inc. v. Transammonia, Inc.
NY Supreme Ct., NY County, Index No. 603950/2001, July 2002 (Cahn, J.H.) - In a software failure action brought by software developer Triple Point against commodity-trading company Transammonia for recovery of unpaid fees for services under a consulting agreement, plaintiff moved to dismiss defendant's six counterclaims. Plaintiff and defendant had entered into:
- a software-license agreement for plaintiff's commodity-trading software;
- a consulting agreement in which plaintiff would develop interfaces to defendant's PeopleSoft accounting software; and
- a maintenance agreement (not central to the action).
The court dismissed defendant's first counterclaim for breach of the software-license agreement, notwithstanding significant alleged deficiencies in the software, finding that the license agreement provides that the software was sold "as is."
The court refused, however, plaintiff's motion to dismiss defendant's second through sixth counterclaims for breach of the consulting agreement, fraudulent inducement, common-law fraud, negligent misrepresentation and recession. The court's refusal is based on defendant's allegations that plaintiff had:
- failed to deliver five of the six promised interfaces;
- falsely represented in response to defendant's RFP that it had the capability of developing the interfaces, that it had already successfully developed such interfaces for another client and that defendant relied on such representations;
- appeared to hold specialized skill and expertise with respect to its ability to develop the interfaces.
Click here to retrieve entire opinion.
Electronic Discovery
Zubulake v. UBS Warburg LLC, 2003 WL 21087136
(S.D.N.Y. May 13, 2003) - Cost-shifting criteria modified. Respondent bears cost of producing electronic records that are "accessible," which the court defines as a) active, online data - usually stored on hard drives; b) near-line data, which includes removable media retrievable by robotic devices; and c) offline storage/archives, including removable backups that are easily restored and readily searchable.
For "inaccessible" electronic records, which the court defines as those archived on difficult-to-restore backup tapes, as well as erased, fragmented or damaged files requiring extensive recovery efforts, a small sample must first be taken and put to a more traditional "undue burden" test (i.e., cost-benefit analysis) before a determination on cost shifting can be made. The court relies, with several modifications, on the "gold standard" cost-shifting criteria of Rowe Entertainment, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 429 (S.D.N.Y. 2003).
Click here to retrieve entire opinion.
Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7 2008)
Electronic Discovery Abuse Results in Waiver of Patent Rights
On March 21, 2007 the U.S. District Court for the Southern District of California entered an Order finding in favor of Defendant Broadcom Corporation and against Plaintiff Qualcomm Incorporated, that two Qualcomm patents were unenforceable due to waiver. After a jury verdict, Broadcom again demanded discovery of Qualcomm’s records that previously had been concealed, but whose possible existence was only revealed during Broadcom’s cross-examination of a Qualcomm witness on one of the last days of trial. The court found that thereafter, after over three more months of denials, refusals, and opposition, Qualcomm produced over 230,000 pages of emails, company correspondence, and memoranda.
The court found that Qualcomm had intentionally engaged in aggravated litigation abuse (1) in discovery through Qualcomm’s constant stonewalling, concealment, and repeated misrepresentations concerning existing corporate documentary evidence that would have revealed the fullness of the corporate plan; and (2) in trial through Qualcomm’s presentation of numerous witnesses who steadfastly testified falsely denying even awareness, even after the truth was discovered and exposed by the document production.
The Court also found by clear and convincing evidence that Qualcomm counsel participated in an organized program of litigation misconduct and concealment throughout discovery and trial, by concealing the existence of thousands of pages of emails and electronic documents, which were clearly within the scope of the discovery requests, and that were finally produced four months post-trial.
On August 7, 2007 the Court found in favor of Broadcom and against Qualcomm that Qualcomm had indeed waived its right to enforce its patents due to its inequitable conduct.
Click here to retrieve entire opinion.
Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 2008 WL 5062700
(S.D.N.Y. Nov. 21, 2008) - Plaintiffs requested Defendants' production of (1) responsive emails and electronic documents (such as Word, PowerPoint, and Excel documents) in TIFF format with corresponding metadata, and (2) meaningful information about the metadata fields of ICE's hierarchical databases so that the Plaintiffs can determine which database metadata they should request. The Court found that metadata is discoverable if it is relevant to the claim or defense of any party and is not privileged, and if on balance, its probative value outweighs the burden of producing it. The Court found that parties should meet and confer early in the case as to their needs for metadata and they have an obligation to preserve metadata and produce it when relevant and not privileged.
Click here to retrieve entire opinion.
Smith v. Slifer Smith & Frampton/Vail Associates Real Estate
(United States District Court, D. Colorado Feb. 25, 2009) - In a motion for sanctions for an adverse inference for destruction of evidence for wiping a computer hard drive, the Court found that wiping a hard drive willfully and in bad faith constitutes spoliation leading to an adverse inference instruction to the jury at trial and permitting plaintiff to amend its claims for exemplary damages based on the adverse inference.
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