Alifax Holding Spa v. Alcor Scientific Inc. et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
ALIFAX HOLDING SPA, 	)
)
Plaintiff, 	)
)
v. 	) 	C.A. No. 14-440 S
)
ALCOR SCIENTIFIC INC. and 	)
FRANCESCO A. FRAPPA, 	)
)
Defendants. 	)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
This intellectual property dispute concerns competing medical
devices that measure the erythrocyte sedimentation rate (“ESR”) of
blood 	samples 	to 	test 	for 	non-specific 	inflammation. 	Before 	the
Court 	is 	defendant 	Alcor 	Scientific, 	Inc.’s 	Motion 	for 	Rule 	37
Sanctions 	for 	Plaintiff’s 	Violation 	of 	the 	Court’s 	Order 	Compel-
ling Production of Its Complete Source Code. 	(ECF No. 151.) 	Alcor
seeks maximal penalties against plaintiff Alifax Holdings SpA for
Alifax’s 	alleged 	non-compliance 	with 	an 	order 	compelling 	produc-
tion of the “complete source code” for its ESR devices, including
dismissal of three claims, attorneys’ fees and expert-related ex-
penses. 	(Defs.’ 	Mem. 	in 	Supp. 	of 	Mot. 	for 	Rule 	37 	Sanctions 	17,
ECF No. 151-1.)
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The circumstances confronting the Court are not, however, so
cut and dry. 	The order compelling production was arguably ambig-
uous and Alifax’s position concerning responsive materials was not
patently 	unreasonable. 	There 	is, 	moreover, 	no 	evidence 	that
Alifax’s initial production of source code, while incomplete, was
made 	in 	bad 	faith, 	caused 	protracted 	delay 	or 	otherwise 	supports
imposing 	sanctions. 	For 	the 	reasons 	set 	forth 	herein, 	Alcor’s
motion is accordingly DENIED.
I. Background
Alifax 	and 	Alcor 	sell 	competing 	products. 	(See 	Second 	Am. 	&
Supp. 	Compl. 	¶ 	45, 	ECF 	No. 	68.) 	Alifax 	alleges 	that 	its 	former
employee, 	defendant 	Francesco 	Frappa, 	misappropriated 	its 	trade
secrets, became Alcor’s director of research and development, and
that 	Alcor 	and 	Frappa 	used 	Alifax’s 	proprietary 	information 	to
develop 	Alcor’s 	iSED 	ESR 	analyzer 	(“iSED”). 	(See 	id. 	¶¶ 	4, 	40,
44.) 	Alifax 	consequently 	brought 	claims 	of 	patent 	infringement,
trade secret misappropriation, breach of a confidential relation-
ship and copyright infringement. 	(See generally id.) 	The Defend-
ants’ 	alleged 	transgressions 	specifically 	include, 	among 	others,
(1) misappropriating Alifax’s conversion algorithm from the source
code for its software and firmware; and (2) infringing on Alifax’s
copyrighted source code by copying some of the code into the iSED
devices. 	(Defs.’ 	Mem. 	in 	Supp. 	of 	Mot. 	for 	Rule 	37 	Sanctions
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(“Defs.’ 	Mot.”) 	4, 	ECF 	No. 	151-1.) 	The 	Defendants 	dispute 	these
facts.1
On 	December 	5, 	2017, 	Alcor 	moved 	for 	an 	order 	compelling
Alifax 	to 	produce 	“its 	complete 	source 	code 	to 	date” 	for 	its 	ESR
devices 	and 	for 	leave 	to 	serve 	a 	supplemental 	expert 	rebuttal
report. 	(Defs.’ 	Mot. 	to 	Compel, 	ECF 	No. 	107.) 	Magistrate 	Judge
Lincoln D. Almond granted Alcor’s motion on February 2, 2018. (See
generally Mem. & Order, ECF No. 127.) In a nutshell, Alcor argues
that Alifax violated the court’s order as it twice failed to pro-
duce 	“complete 	source 	code” 	for 	all 	of 	its 	devices, 	including 	by
withholding materials known as “build files” and “version control
system” 	files.2 	(Defs.’ 	Mot. 	2-3.). 	Alcor 	also 	argues 	that 	Ali-
fax’s offer to produce additional source code and build files after
its request for sanctions cannot cure any earlier deficiencies.3
1 	Alcor 	also 	counterclaims 	that 	Alifax’s 	patents 	are 	invalid 	and
Alifax intentionally interfered with Alcor’s prospective contrac-
tual relations by filing this action. 	(See Defs.’ Answer to Pl.’s
Second Am. & Supp. Comp & First Am. Countercl. 16-17, ECF No. 71.).
2 Build files are comprised of scripts, makefiles, linker command
files and project files that compile or transform source code from
human-readable 	programing 	language 	into 	machine-readable 	“object
files” 	in 	binary 	code. 	(Decl. 	of 	Daniel 	Smith 	¶¶ 	2-5, 	ECF 	No.
151-2 	(“Smith 	Decl.”).) 	A 	version 	control 	system 	is 	a 	tool 	for
tracking revisions to source files that shows when such files were
added, 	deleted 	or 	altered. 	(Id. 	at 	¶ 	8.). 	A 	version 	control
repository is a database that holds the complete revision history
for every file used to develop a product’s source code. 	(Id.)
3 	The 	parties’ 	filings 	do 	not 	clearly 	explain 	whether 	Alcor 	has
received 	or 	reviewed 	the 	additional 	data 	from 	Alifax. 	(Compare
Pl.’s Opp’n Mem. 1, ECF No. 152 (“Pl.’s Opp’n”)(“. . . there is no
dispute that Alifax has produced all of it actual source code . .
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II. 	Discussion
A. 	Legal Standard
Rule 37(b)(2) of the Federal Rules of Civil Procedure author-
izes 	sanctions 	“[i]f 	a 	party 	. 	. 	. 	fails 	to 	obey 	[a 	discovery]
order 	. 	. 	. 	including 	an 	order 	under 	Rule 	26(f), 	35, 	or 	37(a) 	.
. 	. 	. 	” 	As 	the 	First 	Circuit 	explained 	in 	R.W. 	Int’l 	Corp. 	v.
Welch Foods, Inc., two “conditions precedent” must exist before a
court 	may 	“engag[e] 	the 	gears 	of 	the 	rule’s 	sanction 	machinery”:
(1) 	a 	court 	order 	must 	be 	in 	effect, 	and 	(2) 	the 	order 	must 	be
violated. 	937 	F.2d 	11, 	15 	(1st 	Cir. 	1991); 	see 	also 	Astro-Med,
Inc. 	v. 	Plant, 	No. 	CV 	06-533 	ML, 	2008 	WL 	11387142, 	at 	*8 	(D.R.I.
Jan. 	3, 	2008). 	The 	command 	must 	be 	“sufficiently 	explicit” 	as
imperfect compliance with an indefinite directive should not yield
strict 	discipline. 	Id. 	at 	15-16 	(holding, 	among 	other 	things,
“sweeping 	generalities” 	of 	scheduling 	order 	could 	not 	justify
sanctions for party’s failure to answer specific deposition ques-
tions); 	Sanchez-Medina 	v. 	UNICCO 	Serv. 	Co., 	265 	F.R.D. 	29, 	40
(D.P.R. 2010) (plaintiffs’ failure to produce “specific materials”
in 	response 	to 	“broad” 	order 	insufficient 	to 	support 	sanctions).
An 	alleged 	violation 	for 	failure 	to 	produce 	materials 	is 	unripe
.”) with Defs.’ Reply Mem. 3, ECF No. 168 (“[I]t is unclear . . .
whether Alifax is now offering to produce all files and tools that
would 	make 	its 	source 	code 	production 	complete.”). 	It 	appears,
however, that Alifax has made the disputed materials available for
inspection by Alcor’s expert pursuant to the terms of this action’s
protective order. 	(Pl.’s Opp’n Ex. A at 8, ECF No. 152-1.)
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“unless the failure of discovery is absolute.” 	R.W. Int’l Corp.,
937 F.2d at 17.
The 	unambiguous 	terms 	of 	a 	court 	order 	should 	be 	afforded
their plain, ordinary meaning. 	See Negron-Almeda v. Santiago, 528
F.3d 	15, 	23 	(1st 	Cir. 	2008) 	(“[U]nless 	and 	until 	a 	clear 	and
unambiguous order is amended or vacated . . . ‘a court must adopt,
and give effect to, [the order's] plain meaning.’”) (quoting United
States 	v. 	Spallone, 	399 	F.3d 	415, 	421 	(2d 	Cir. 	2005) 	(alteration
in original). 	If ambiguity causes “some play in the joints,” the
relevant 	parts 	of 	the 	record 	may 	also 	be 	considered 	to 	determine
the authoring court’s intent. 	Id.
This 	Court 	has 	“considerable 	leeway” 	in 	policing 	any 	uncov-
ered 	noncompliance, 	Young 	v. 	Gordon, 	330 	F.3d 	76, 	81 	(1st 	Cir.
2003), 	and 	does 	so 	in 	light 	of 	“the 	totality 	of 	the 	attendant
circumstances.” 	Torres-Vargas 	v. 	Pereira, 	431 	F.3d 	389, 	392 	(1st
Cir. 2005). 	Such circumstances include (1) the willfulness or bad
faith of the non-complying party; (2) the prejudice to the opposing
party; 	(3) 	whether 	the 	procedural 	history 	indicates 	protracted
inaction 	or 	deliberate 	delay; 	and 	(4) 	the 	disregard 	of 	earlier
warnings of the consequences of the misconduct in question. 	In re
Selected Somersworth Bank Cases, 148 F.R.D. 1, 4 (D. Me. 1993)(cit-
ing 	National 	Hockey 	League 	v. 	Metro. 	Hockey 	Club, 	Inc., 	427 	U.S.
639, 	640 	(1976); 	Velazquez–Rivera 	v. 	Sea–Land 	Serv., 	Inc., 	920
F.2d 	1072, 	1077 	(1st 	Cir. 	1990)). 	If 	warranted, 	penalties 	under
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Rule 	37 	may 	run 	the 	gamut 	of 	severity 	from 	reasonable 	attorneys’
fees or expenses to dismissal of the action in whole or in part -
the “measure[s] of last resort.” Torres-Vargas, 431 F.3d at 393.
A. The Meaning of “Complete Source Code”
Alcor argues that because the Court’s order compelled Alifax
to produce its “complete” source code, Alifax also was obliged to
turn 	over 	build 	files 	and 	version 	control 	system 	files. 	(Defs.’
Mot. at 2-3.) 	Alcor’s code expert, Daniel Smith, opines that such
files are necessary to avoid speculating about the “building pro-
cess,” 	which 	can 	cause 	different 	behaviors 	by 	changing 	the 	prod-
uct’s “final executable image.” (Smith Decl. ¶ 7). 	Mr. Smith thus
concludes that both file types, together with actual source code,
constitute 	“what 	programmers 	refer 	to 	as 	. 	. 	. 	complete 	source
code.” 	(Id. 	at 	¶ 	8 	(emphasis 	added).) 	He 	cites 	no 	source 	for
this conclusion beyond his expertise. 	(Id.) 	Alifax contends that
the 	requested 	material 	was 	“collateral” 	and 	that 	its 	decision 	to
retain 	materials 	other 	than 	“source 	code” 	was 	based 	on 	a 	good-
faith interpretation of the order. (Pl.’s Opp’n 4-5.)
The Court agrees with Alifax. 	There is little to glean from
the 	text 	of 	the 	Magistrate 	Judge’s 	order. 	The 	phrase 	“complete
source 	code” 	is 	undefined. 	(See 	generally 	Mem. 	& 	Order, 	ECF 	No.
127.) 	The 	order 	does 	not 	refer 	to 	build 	files, 	version 	control
system files or a version control repository. 	(Id.) The underlying
record 	provides 	little 	additional 	guidance. 	The 	parties’ 	motion
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papers 	neither 	define 	the 	phrase 	“complete 	source 	code” 	nor 	spe-
cifically refer to the files at issue. 	(See generally Defs.’ Mem.
in Supp. of Mot. to Compel, ECF No. 107-1; Pl.’s Resp. in Opp’n to
Mot. 	to 	Compel, 	ECF 	No. 	109.) 	The 	parties’ 	detailed 	protective
order only increases any ambiguity, as it implicitly acknowledges
that 	“computer 	source 	code” 	and 	tools 	such 	as 	“compilers, 	assem-
blers, or interpreters” are distinguishable, yet permits all such
material 	to 	be 	labeled 	as 	“HIGHLY 	CONFIDENTIAL 	– 	SOURCE 	CODE.”
(Stip. Protective Order, ECF No. 41 (emphasis added).)
Here, dictionary definitions serve as a helpful supplement to
the 	record. 	See 	S.E.C. 	v. 	Tambone, 	597 	F.3d 	436, 	443 	(1st 	Cir.
2010) 	(“One 	reference 	point 	for 	determining 	the 	ordinary 	meaning
of 	a 	word 	is 	its 	accepted 	dictionary 	definition.”). 	Definitions
of “source code” commonly limit the term’s meaning to code written
in 	a 	human-readable 	program 	language 	or 	a 	similar 	variant. 	See,
e.g., 	Webster’s 	Third 	New 	International 	Dictionary 	131a 	(2002)
(defining “source code” as “computer code in its original program-
ming language”); Am. Heritage Dictionary 1662 (4th ed. 2000) (de-
fining “source code” as “[c]ode written by a programmer in a high-
level language and readable by people . . . . Source code must be
converted 	to 	object 	code 	. 	. 	. 	before 	a 	computer 	can 	read 	or
execute 	the 	program.”); 	see 	also 	Daniel 	B. 	Garrie 	& 	Francis 	M.
Allegra, Fed. Judicial Ctr., Understanding Software, the Internet,
Mobile 	Computing, 	and 	the 	Cloud: 	A 	Guide 	for 	Judges 	97 	(2015)
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(“Source 	Code. 	A 	set 	of 	instructions 	written 	in 	a 	human-intelli-
gible 	programming 	language 	that 	defines 	a 	computer 	program’s 	op-
erations.”). 	None 	of 	these 	definitions 	refer 	to 	build 	files,
version 	control 	system 	files 	or 	similar 	materials. 	Accordingly,
a 	party 	could 	plausibly 	conclude 	that 	such 	information 	is 	beyond
the 	scope 	of 	the 	court’s 	order 	based 	on 	the 	plain 	meaning 	of 	its
text.
Mr. Smith’s opinion is consistent with this conclusion. 	Alt-
hough he opines that “complete source code” serves as an industry
shorthand for various materials, he also acknowledges that source
code, 	build 	files 	and 	version 	control 	system 	files 	are 	distinct
parts 	of 	the 	software 	development 	process. 	“Source 	code,” 	he
explains, 	“is 	human-readable 	computer 	code,” 	whereas 	build 	files
are 	tools 	that 	compile 	source 	code 	into 	machine-readable 	object
files. 	(Smith 	Decl. 	at 	¶¶ 	2, 	5-6.) 	A 	version 	control 	system
tracks 	revisions 	to 	both 	source 	code 	and 	build 	files. 	(Id. 	at 	¶
8.) 	The 	“version 	control 	repository” 	is 	a 	third 	tool 	that 	func-
tions 	as 	a 	historical 	database 	of 	every 	file 	used 	to 	develop 	a
product’s 	source 	code. 	(Id.) 	Thus, 	Alifax’s 	conclusion 	that 	it
was 	obliged 	only 	to 	produce 	source 	code 	files, 	rather 	than 	any
files or tools required for code compilation, is fair.
The 	two 	cases 	cited 	by 	Alcor 	to 	support 	its 	reading 	are 	not
persuasive. 	See 	UMG 	Recording, 	Inc. 	v. 	Escape 	Media 	Grp., 	Inc.,
No. 	11 	CIV. 	8407, 	2014 	WL 	5089743 	(S.D.N.Y. 	Sept. 	29, 	2014);
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Telebuyer, LLC v. Amazon.com, Inc., No. 13-CV-1677, 2014 WL 5804334
(W.D. Wash. July 7, 2014). 	In UMG Recording, the district court
found spoliation where defendant deleted source code revision his-
tories after plaintiff expressly sought to compel “a full produc-
tion 	of 	all 	source 	code, 	i.e., 	the 	complete 	repositories” 	for
plaintiff’s 	software. 	2014 	WL 	5089743 	at 	*10 	(emphasis 	added).4
As for Telebuyer, the court adopted a comprehensive definition of
“source code” to define the parties’ confidentiality obligations,
acknowledging in its ruling that the definition swept in “routinely
disclosed 	documents 	that 	have 	nothing 	to 	do 	with 	source 	code.”
2014 	WL 	5804334 	at 	*3. 	Neither 	ruling 	supports 	the 	proposition
that 	“complete 	source 	code” 	necessarily 	includes 	the 	materials
Alcor seeks.
Thus, 	even 	assuming 	Magistrate 	Judge 	Almond 	intended 	to 	re-
quire 	Alifax 	to 	produce 	build 	files 	and 	version 	control 	system
files, 	the 	order’s 	reference 	to 	“complete 	source 	code” 	was 	not
sufficiently 	clear 	to 	command 	their 	production. 	Alifax’s 	narrow
interpretation of the order’s terms was reasonable and provided a
good 	faith 	basis 	to 	withhold 	such 	materials, 	thus 	sanctions 	are
unwarranted on these grounds.
4 	The 	UMG 	Recording 	plaintiff’s 	request 	expressly 	sought 	“all
versions 	of 	all 	software 	. 	. 	. 	in 	all 	available 	forms, 	including
source 	code, 	object 	code, 	scripts, 	and 	web 	page 	code 	. 	. 	. 	.”
(Decl. of Gianni P. Servodidio in Supp. of Mot. for Sanctions for
Spoliation of Evid. Ex. 15 at 8, UMG Recording, No. 11 CIV. 8407,
ECF No. 83-5.)
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B. Alifax’s Incomplete Production of Source Code and Its
Post-Motion Disclosure of Additional Materials
Irrespective of Alifax’s withholding of build files and ver-
sion 	control 	system 	files, 	Alcor 	marshals 	convincing 	proof 	that
Alifax’s February 23, 2018 and February 28, 2018 productions omit-
ted 	certain 	source 	code 	files 	and 	were 	therefore 	deficient.
(Defs.’ 	Reply 	Mem. 	3-4, 	ECF 	No. 	168.) 	Alifax 	does 	not 	dispute
that 	these 	productions 	were 	incomplete. 	Instead, 	it 	represents
that any shortcomings were inadvertent and that Alcor’s request is
moot as it has now produced all source code as well as any materials
“that 	could 	conceivably 	constitute 	[c]ollateral 	[m]aterials[.]”
(Pl.’s Opp’n 1-2, 7-8.)
It 	is 	well-settled 	that 	a 	party’s 	subsequent, 	curative 	dis-
closures 	do 	not 	inherently 	provide 	safe 	harbor 	from 	sanctions.
See 	Serra–Lugo 	v. 	Consortium–Las 	Marias, 	271 	F.3d 	5, 	6 	(1st 	Cir.
2001) 	(affirming 	dismissal 	notwithstanding 	appellant's 	belated
compliance with the court's order in “a somewhat relaxed manner”);
N. Am. Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451
(9th 	Cir. 	1986) 	(“Belated 	compliance 	with 	discovery 	orders 	does
not 	preclude 	the 	imposition 	of 	sanctions.”) 	(citing 	National
Hockey League, 427 U.S. at 643 (district court did not abuse dis-
cretion 	by 	dismissing 	case 	with 	prejudice 	when 	party 	failed 	to
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timely answer interrogatories)). 	The Court accordingly finds Ali-
fax’s 	inadequate 	disclosures 	on 	February 	23 	and 	February 	28 	vio-
lated the letter of Magistrate Almond’s order.
Whether 	Alifax’s 	non-compliance 	merits 	sanctions 	is 	another
matter. 	Alifax produced the missing code for its “Jo Plus” prod-
uct, 	first 	identified 	by 	Mr. 	Smith 	as 	missing 	on 	February 	23,
within 	five 	days. 	(Smith 	Decl. 	at 	¶ 	23; 	Defs.’ 	Reply 	Mem. 	at 	3.)
On March 2, Alcor identified additional missing source code. (Decl.
of 	Craig 	M. 	Scott, 	Esq., 	Ex. 	2 	at 	6-7, 	ECF 	No. 	151-7.) 	Within
four 	days, 	Alifax 	agreed 	to 	produce 	the 	additional 	missing 	code,
stating that the files had been stored “on an old repository that
[had] not been used since 2013.” 	(Pl.’s Opp’n Ex. A at 7, ECF No.
152-1.) 	Alifax represented at the same time that the missing files
had 	been 	downloaded 	and 	could 	be 	reviewed 	on 	a 	laptop 	at 	Alcor’s
request.5 	(Id.) 	The 	parties 	continued 	to 	negotiate 	for 	twenty
more 	days 	about 	whether 	or 	to 	what 	extent 	Alifax 	should 	produce
build 	files 	and 	version 	system 	control 	files, 	until 	Alcor 	filed
its 	motion 	for 	sanctions 	on 	March 	26. 	(Id.) 	By 	April 	5, 	Alifax
contends 	that 	it 	offered 	to 	produce 	all 	conceivable 	materials
sought by Alcor. 	(See id. at 2; Pl.’s Opp’n 2 n.1).
5 	The 	cumbersome 	review 	process 	that 	required 	experts 	to 	review
source 	code 	on 	a 	secure 	computer 	was 	established 	by 	the 	parties
stipulated protective order. (See Stip. Protective Order 4-5, ECF
No. 41.)
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The parties’ disputatious inclinations regarding the produc-
tion 	of 	source 	code 	in 	this 	action 	– 	whether 	or 	not 	justified 	-
are 	manifest. 	Based 	on 	the 	foregoing 	events, 	however, 	the 	Court
cannot 	conclude 	that 	Alifax’s 	compliance 	was 	“so 	minimal 	as 	to
constitute 	an 	outright 	failure 	to 	obey 	the 	dictates 	of 	the 	[or-
der].” 	R.W. 	Int'l., 	937 	F.2d 	at 	17. 	Within 	five 	days 	of 	Mr.
Smith’s February 23 review, Alifax offered to produce any missing
source 	code 	files 	as 	provided 	by 	the 	protective 	order. 	Further
delay 	was 	engendered 	principally 	by 	the 	parties’ 	wrangling 	over
whether 	Alifax 	would 	produce 	the 	disputed 	“collateral” 	files.6
There is no evidence that Alifax’s initial incomplete disclosures
were willful or made in bad faith. 	See Serra–Lugo, 271 F.3d at 6
(affirming 	dismissal 	after 	“repeated 	violations 	of 	[the 	court’s]
orders”); In re Selected Somersworth Bank Cases, 148 F.R.D. at 4.
Any 	unfair 	prejudice 	has 	presumably 	already 	been 	mitigated 	by
Alifax’s production of all conceivable materials sought by Alcor.7
6 The Court recognizes that Alifax’s inadequate initial production
caused 	Alcor 	to 	incur 	some 	unexpected 	expenses 	from 	its 	expert’s
subsequent 	review. 	The 	burdensome 	examination 	process, 	however,
was 	stipulated 	to 	by 	the 	parties. 	(See 	Stip. 	Protective 	Order 	4-
5.) 	And as Alifax notes, it was Alcor’s choice to retain a Cali-
fornia-based 	expert 	to 	review 	records 	that 	would 	be 	produced 	in
Providence, 	inevitably 	resulting 	in 	additional 	expenses. 	(Pl.’s
Opp’n 7.)
7 	Alcor 	questions 	the 	potential 	adequacy 	of 	Alifax’s 	post-motion
disclosure. 	(Defs.’ 	Reply 	Mem. 	5.) 	A 	status 	conference 	is 	this
action 	is 	set 	for 	October 	17, 	2018. 	As 	stated 	at 	the 	Court’s
September 	25, 	2018 	motion 	hearing, 	the 	Court 	expects 	that 	any
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Viewed 	in 	their 	totality, 	these 	circumstances 	do 	not 	support
imposing 	sanctions, 	particularly 	the 	“measure[s] 	of 	last 	resort”
requested by Alcor. 	Torres-Vargas, 431 F.3d at 393.
III. 	Conclusion
For 	the 	aforementioned 	reasons, 	Alcor’s 	Motion 	for 	Rule 	37
Sanctions 	for 	Plaintiff’s 	Violation 	of 	the 	Court’s 	Order 	Compel-
ling 	Production 	of 	Its 	Complete 	Source 	Code 	(ECF 	No. 	151) 	is
DENIED.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: October 17, 2018
remaining 	discovery 	issues 	will 	be 	resolved 	by 	agreement 	or 	oth-
erwise brought to the court’s attention at this conference so that
they can be disposed of expeditiously.
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