Free Response to Motion - District Court of Arizona - Arizona

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FENNEMORE CRAIG Jordan Green (No. 001860) Charles Houston (No. 020844) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Email: [email protected] Attorneys for Defendants Avnet, Inc., Roy Vallee, and Allen Maag UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, doing business as Coogan Photographic, Plaintiff, v. AVNET, INC., a foreign corporation, ROY VALLEE and JANE DOE VALLEE, husband and wife; and ALLEN MAAG and JANE DOE MAAG, husband and wife, Defendants. RESPONSE TO MOTION FOR SANCTIONS DUE TO SPOLIATION OF EVIDENCE AND FOR ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE HELD IN CONTEMPT (Assigned to The Hon. Susan R. Bolton) No. CV2004-0621 PHX SRB

SUMMARY OF POSITION Plaintiff's Motion for Sanctions and Motion for an Order to Show Cause 1 should be denied. Plaintiff has failed to show that Avnet violated an Order of this Court. Avnet has met the "good faith duty" articulated in this Court' October 3, 2005 Order. Avnet s requested, in its disclosure to plaintiff of October 17, 2005, that plaintiff inform Avnet if he believed there were any additional documents or information that he believed Avnet
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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

Although plaintiff' Motion arises out of a discovery dispute, plaintiff filed the instant Motion s without meeting the Court' "meet and confer" requirement. s

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should produce. Plaintiff did not request any additional documents. His Motion fails to point to a single document that Avnet failed to produce pursuant to the Court' October 3, s 2005 Order. Plaintiff' "spoliation" claim and request for sanctions are without merit. The s significant issues are: 1. An allegation that infringing photographs were destroyed. They were not

destroyed. Avnet removed the offending photographs from its website and stored them on a separate server. The photographs have been produced. 2. Plaintiff' argument that an e-mail has been destroyed is conjecture. He s

assumes that an e-mail Ms. SantaCruz wrote on Feb. 26, 2004 was preceded by an e-mail from someone else. Other than his assumption, there is no evidence in the record to support this view. 3. Mr. Coogan claims Avnet failed to preserve evidence of infringing use on

third party web sites. As to four of these sites, Mr. Coogan asserted before filing suit, in his Complaint and in his Motion that he observed and copied all or part of these sites. Avnet' failure to preserve these sites is a specious point. As to the s remaining third party sites (like AZCENTRAL.com), Avnet does not own or control them. Documents concerning these sites should be obtained from the owner. 4. Coogan claims Avnet failed to preserve its web site that displayed the But Coogan himself visited Avnet' web site and s

infringing photographs.

downloaded some or all of the information displayed. Moreover, Avnet preserved the offending images as well as the status and activity related to those images. The electronic logs of this activity were preserved by Avnet and have been disclosed to plaintiff. 5. Plaintiff' final complaint concerns the 2002 and 2003 Annual Reports of s

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Avnet.

Plaintiff had these Annual Reports in hand before he even filed this

lawsuit. Plaintiff' complaint that copies were not produced by Avnet until after s the Court' October 3 Order is hollow. s FACTS A. Case Status

This case arises out of a copyright infringement claim. The liability issues as to Avnet have been decided. This Court granted summary judgment for plaintiff on the issues of copyright infringement and "willful infringement" on October 24, 2005. Docket # 100. This Court also ruled as a matter of law that Avnet infringed upon only one work under the United States Copyright Act. Id.; see also Docket # 117. B. Background

On February 24, 2004, before suit was filed, plaintiff' counsel sent Avnet a letter s via certified mail alleging that Avnet was committing copyright violation. See Exh. A to Plaintiff' Motion. Specifically, the letter alleged that Avnet' use of plaintiff' s s s copyrighted photographs of Avnet' CEO Roy Vallee violated plaintiff' copyright. Id. s s The letter asserted that Avnet had used plaintiff' copyrighted photographs on Avnet' s s website and in its printed 2002 and 2003 Annual Reports. Id. Plaintiff attached

photocopies of the images taken from Avnet' websites and Annual Reports as exhibits to s his February 24, 2004 letter. Id. Plaintiff' February 24, 2004 letter was the first notification Avnet received that its s rights to use of plaintiff' photographs had expired or that its use of plaintiff' s s photographs had gone beyond the terms negotiated by Avnet and plaintiff. As described below, Avnet took immediate action in response to the notification from plaintiff and attempted to remove all of the infringing photographs. Plaintiff filed suit on March 29, 2004. Plaintiff has served more than 700 Requests for Admission, 100 Requests for

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Production and 35 Interrogatories on Avnet.

Avnet concedes that its responses to

plaintiff' discovery have not been perfect. It asserts that it has made a good faith effort to s comply with its disclosure and discovery obligations.2 The parties were unable to reach agreement on a number of discovery issues in this case. On October 3, 2005, the Court conducted a telephonic hearing on those issues. Specifically, plaintiff claimed that Avnet had failed to adequately produce documents in which the copyrighted photographs had appeared, e.g. Annual Reports, copies of its internal newsletter publication, hard copies of the photographs, and electronic files relating to the photographs. At the hearing, plaintiff sought access to Avnet' computer s system as a remedy. After hearing from both sides, the Court ordered Avnet to "make a good faith effort to provide plaintiff better production of requested documents" within two weeks of the Order. Docket # 94. The Court further noted that if plaintiff could cite specific items which Avnet admitted to using but had not produced, the Court would reconsider plaintiff' request to allow him access to Avnet' computers. Id. Immediately after the s s October 3 hearing, Avnet began compliance with the Court' Order. s C. Avnet Complied With the Court' October 3, 2005 Order s

In response to the Court' October 3 Order, Avnet provided plaintiff, on October s 17, 2005, with: (1) (2) hard copies of several issues of Avnet Global Perspective magazines; hard copies of the 2002 and 2003 Annual Report (Avnet had previously produced electronic copies of the Annual Reports without the offending images); hard copies of the photographic images used by Avnet; emails referencing Avnet' efforts to track and stop usage of the s photographs at issue;

(3) (4)
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Avnet has responded to 528 Requests for Admission, 54 Requests for Production, and 25 Interrogatories.

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a CD-ROM containing electronic images of the photographs as well as the electronic log files for the various Avnet web pages; a chart setting forth the available log and use data surrounding the photographs; and a 5-page letter outlining the steps Avnet took to provide the "better production" ordered by the Court.

(6)

The letter asked plaintiff to inform Avnet if plaintiff believed that there was anything missing from Avnet' October 17 production: "If you believe there is something s missing or that Avnet's production is somehow inadequate, please contact me immediately so that we may attempt to resolve the issue without the Court' intervention." s See October 17, 2005 Letter from C. Houston to J. Meschkow and Production Chart, attached as Exhs. 1 and 2. Plaintiff did not identify any documents as missing from Avnet' production. Indeed, his only request was that Avnet explain why the dates of s certain images on the CD-ROM were the "burn dates" of the images rather than the "creation date" of the images. In a letter dated November 11, 2005, undersigned counsel provided an explanation and urged plaintiff to depose Avnet' Director of Multimedia Services if he desired s further explanation. See November 11, 2005 Letter from C. Houston to J. Meschkow, attached as Exh. 3. Plaintiff' Motion fails to point to a single item which would show s that Avnet failed to comply with this Court' October 3, 2005 Order.3 s D. Avnet Did Not Commit Spoliation

Plaintiff next asserts that sanctions should be imposed against Avnet because Avnet destroyed or failed to preserve evidence. Specifically, he alleges that Avnet deleted electronic files and emails and failed to preserve its own web pages and the web pages of third parties.
Plaintiff' Motion alleges destruction or deletion of certain images and files but Avnet will show that he s is mistaken.
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1.

Avnet Did Not Delete Electronic Images

Plaintiff' most serious contention is that Avnet deleted electronic images. s Plaintiff cites a February 26, 2004 email from Avnet Interactive Designer Rachel SantaCruz as "proof" of his claim that Avnet deleted certain infringing images and destroyed emails associated with Ms. SantaCruz' email. See Plaintiff' Motion at 8, s s referencing Exh. J. Plaintiff is mistaken. A plain reading of Ms. SantaCruz' email shows that this is not a fair s characterization of her actions or her email. I think I got all of the offending photos on bigmac. Looks like there were quite a few from the same day. But there were a few I wasn't sure about ­ the series of roy standing by his glass doors ­ so before I deleted them I put them all in a folder so you can look them over and let me know if we should be keeping any of them. http://kazadum.avnet.com/bigmac/images/DO_NOT_USE_COPYWRITE_ VIOLATION/ (Emphasis added). Ms. SantaCruz did not destroy the images as plaintiff alleges; to the contrary, she took pains to preserve them. Ms. SantaCruz' purpose was clear ­ to remove all s

offending uses from the public Internet and preserve them in Avnet' internal server for s review. The photographs which were placed in the

"DO_NOT_USE_COPYWRITE_VIOLATION" electronic folder have been produced to plaintiff as part of its October 17, 2005 production. These photographs are contained in the Images directory of the CD-ROM under the file name:

\images\original_source_images.4

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Avnet' Multimedia Applications Specialist Bryan Carter took the contents of the "DO_NOT_USE" file s and transferred them to the CD-ROM, albeit under another file name. The images from the "DO_NOT_USE" file can be found in the above-referenced directory on the CD-ROM.

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2.

Avnet Did Not Delete Emails Associated with Ms. SantaCruz' Email s

Plaintiff next suggests that Ms. SantaCruz' email somehow proves that Avnet is s withholding documents because her February 26, 2004 email was written "apparently in response to yet another email that has not been produced." See Plaintiff' Motion at 8, s referencing Exh. I. Plaintiff' assertion that Ms. SantaCruz's email was written in s

response to an undisclosed email is mere conjecture. Ms. SantaCruz' email is not captioned as a "Reply", nor does it refer to a previous s email. Although it is apparent from the email that Ms. SantaCruz is acting on orders from someone, there is no evidence that she received these orders via email or other written correspondence. Avnet has searched for the email that plaintiff assumes exists and has found nothing. There is nothing in the record to support plaintiff' claim that this email s proves that Avnet is withholding evidence. 3. Third-Party Web Sites

Plaintiff points to a February 25, 2004 email from Avnet Web Developer Vicki Calabro to support his claim that Avnet failed to preserve evidence. Ms. Calabro' email, s sent the same day Avnet received plaintiff' notice of infringement, lists five 5 third-party s web pages containing the infringing photographs. None of these web pages are owned or controlled by Avnet. Plaintiff argues that Avnet failed to preserve the five web pages referenced in Ms. Calabro' email. It is undisputed that plaintiff had knowledge of and actually did preserve s at least three of the five web pages contained in Ms. Calabro' email. s Plaintiff' s

Amended Complaint contains photographs from these three web pages. See Docket # 24,
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The web pages listed in Ms. Calabro' email are: s

1. www.azcentral.com/arizonarepublic/business/articles/0713execprofile13.html 2. www.crn.com/Components/printArticle.asp?ArticleID=47494 3. channelweb.com/sections/Newscenters/Article.asp?newscenterID=58&ArticleID=47494

4. www.supply-chain.org/SER/2003/SER03_program.htm 5. www.supply-chain.org/News/Newsletters/12-02/03SERSpkrpics.htm

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¶ 45 (Exh. 39), ¶ 47 (Exh. 43), ¶ 48 (Exh. 45). The Amended Complaint also lists a fourth web page which plaintiff knew about but is not contained in Ms. Calabro' email, s www.gcit.av.gov. Id., ¶ 46 (Exh. 41). Plaintiff knew about and preserved four of the seven websites that contained the copyrighted photographs. He cannot legitimately contend that Avnet' failure to preserve s those four websites somehow prejudiced his case.6 The rules against spoliation are designed to prevent acts done to suppress the truth and to ensure that litigants have equal access to evidence. The objective is to make sure that a party is not deprived of an opportunity to prove his case as a result of the other party' destruction or failure to preserve evidence. Plaintiff' spoliation argument as to s s these four websites must fail because he had equal access to and was in possession of the evidence he seeks from Avnet. As for the remaining two web pages contained in Ms. Calabro' email, s www.azcentral.com and www.channelweb.com, Avnet denies that it had a duty to preserve the web pages of third party web sites not owned or controlled by Avnet. Avnet acknowledges that parties have a duty to preserve relevant evidence that is within their care, custody or control, but websites operated by third parties are not within Avnet's care, custody or control. Thus, to the extent plaintiff seeks web logs depicting the history of third party websites, he can and should subpoena the operators of those websites directly because they ­ not Avnet - are the ones in possession of the records he seeks. 4. Avnet Web Pages

Plaintiff contends that Avnet failed to preserve or produce its own web pages.
The same reasoning applies to the Avnet.tv website. As noted in Avnet' October 17 production chart s provided to plaintiff, Avnet does not have any electronic or hard copies of the relevant images from this website. This is because Avnet.tv is managed and operated by a third party vendor, Kino Communications, Inc. Plaintiff' Amended Complaint alleges use of the copyrighted photographs at s Avnet.tv and attaches photocopies taken from the Avnet.tv web page. See Docket # 24, ¶ 36 (Exh. 24). Plaintiff had an opportunity to preserve and did in fact preserve the evidence he seeks from Avnet.
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Avnet produced a CD-ROM to plaintiff containing the electronic log files of the images Avnet admitted to using. This is the best evidence that exists of the status and activity related to the infringing images during the relevant periods. Perhaps more importantly, plaintiff cannot show that he was prejudiced by Avnet's alleged failure to preserve its web pages where plaintiff had access to and actually preserved these web pages himself. Plaintiff' February 24, 2004 letter to Avnet makes it very clear that he knew s Avnet was using plaintiff' photographs on its website. His Motion specifically notes that s he made "every effort to visit Defendants' websites frequently [and] download information... " Plaintiff' Motion at 14. Having made "every effort" to visit Avnet's s websites and download information, plaintiff had ample opportunity to gather and preserve the very evidence he claims Avnet failed to preserve. D. 1. Avnet' Disclosure of its Printed and Electronic Annual Reports Is Not s Worthy of Sanctions or an Adverse Inference Plaintiff Had the Printed Annual Reports as Early as February 2004

Plaintiff contends that sanctions against Avnet are appropriate because Avnet failed to disclose hard copies of its 2002 and 2003 Annual Reports that contained plaintiff's copyrighted photographs. Plaintiff had these 2002 and 2003 Annual Reports on February 24, 2004. His February 24, 2004 letter to Avnet expressly notes that the copyrighted images appear in the 2002 and 2003 printed copies of Avnet' Annual Report. Plaintiff' s s Motion at 2, referencing Exh. A. In fact, copies of the photographs from the 2002 and 2003 Annual Report are attached to plaintiff' February 24 letter as Exhibits 9 and 10. Id. s at 2. In other words, plaintiff cannot claim that his case was prejudiced by Avnet' late s disclosure of hard copies of its 2002 and 2003 Annual Reports because he had them before suit was filed.

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2.

Avnet' Disclosure of Electronic Copies of its Annual Reports Was Done in s Good Faith

Plaintiff suggests that Avnet attempted to mislead plaintiff and this Court by producing only electronic copies of the 2002 and 2003 Annual Reports rather than printed copies. This allegation must be viewed in the context of plaintiff' February 2004 s

notification letter. When plaintiff informed Avnet that its use of plaintiff' copyrighted s photographs in its Annual Report constituted a copyright violation, Avnet' Director of s Multimedia Services removed the photograph from the .PDF (electronic) copy of the Annual Reports to prevent future violations. Thus, when Avnet responded months later to plaintiff' discovery request for copies of its Annual Report, Avnet produced the s electronic version that it had at the time. There was no intent to deceive plaintiff or this Court. 3. Avnet' Continued Distribution of Annual Reports Containing Infringing s Photographs Was an Unintentional Distribution of Infringing Annual Reports

As for Avnet' continued distribution of the Annual Reports containing infringing s photographs, Avnet affirmatively asserts that this is not an attempt to engage in any 16 discovery-related skullduggery; rather, it was an unintentional copyright violation. In 17 fact, Avnet' lawyers were not even aware of the ongoing distribution until plaintiff' s s 18 October 14, 2005 letter informing him that infringing Annual Reports were still being sent 19 out. 20 Upon investigation of plaintiff' claim, undersigned counsel discovered that the s 21 Annual Reports were being sent out by a third-party vendor, Corporate Communications 22 23 24 25 26
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Center7 in Dallas, Texas.
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Avnet had unintentionally overlooked the distribution of

Avnet ordered 55,000 printed copies of the 2002 Annual Report and 60,000 printed copies of the 2003 Annual Report. Corporate Communications Center received approximately 600 copies of the 2002 printed Annual Report and 500 copies of the 2003 printed Annual Report. Corporate Communications Center has 372 copies of the 2002 Report and 204 copies of the 2003 Report remaining. Avnet has not yet determined exactly how many printed Annual Reports were distributed as distributions were made internally and by two other vendors, but Avnet admits that the majority of the printed Annual Reports for

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infringing Annual Reports by the third-party vendor when it instructed its employees to cease the use of the relevant photographs. Upon discovery of the continuing distribution by the third-party vendor, undersigned counsel instructed Avnet and Corporate Communications Center to stop distributing printed copies of the Annual Reports containing the copyrighted photographs. 4. Avnet' Claim that it "Immediately Stopped All Use" of the Infringing s Annual Reports

And finally, plaintiff would have this Court believe that Avnet deliberately misled plaintiff and the Court when it claimed to have immediately stopped all use of the infringing photographs. Specifically, in its Response to plaintiff' Motion for Partial s Summary Judgment, Avnet asserted: "When Avnet learned that it had infringed on

plaintiff' copyright in the photographs, it immediately discontinued its use and s distribution of the photographs." Docket # 65 at 3. This statement was based upon an Affidavit provided by Allen Maag that stated: "Upon learning that Avnet had violated plaintiff' copyright in the photographs, I immediately ordered that all use and distribution s of the photographs be stopped immediately." Docket # 66 at ¶ 9. The fact that Mr. Maag' order did not ultimately catch all of the offending uses s does not mean that his directive was not issued in good faith, nor does it suggest that Avnet intended to deceive plaintiff or this Court. Furthermore, undersigned counsel relied in good faith upon the Affidavit of Allen Maag and representations by other Avnet employees when he wrote that Avnet immediately discontinued its use of the photographs. Both undersigned counsel and Mr. Maag believed that statement to be true at the time it was made. See Affidavit of C. Houston, attached as Exh. 4. In hindsight, Avnet and undersigned counsel realize that the measures taken by
2002 and 2003 were distributed.

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Avnet to immediately stop all infringing use were not stringent enough to capture distribution of infringing Annual Reports by a third party, but plaintiff' claim that this s was an intentional misrepresentation to the Court is mistaken. DISCUSSION A. Plaintiff Has Not Presented Any Evidence to Support an Order to Show Cause

Plaintiff' request for a "show cause" hearing should be denied by this Court. s Plaintiff has failed to meet his burden as a matter of law. A party moving for a finding of civil contempt has the burden of showing "by clear and convincing evidence" that the opposing party violated a specific and definite order of the Court. See In re Hercules Enterprises, Inc., 387 F.2d 1024 (9th Cir. 2004). Plaintiff has not met and cannot meet this test. First, plaintiff has not shown any evidence ­ much less clear and convincing evidence ­ that Avnet violated a specific and definite order of this Court. The Court ordered Avnet to make a "good faith effort" to provide better production and that is precisely what it did. Avnet gathered hard copies of Annual Reports, photographs, copies of its internal newsletter, emails, and log files of electronic use of the images at issue. Avnet further provided plaintiff with a detailed explanation of its efforts and a chart explaining the electronic log files. Finally, Avnet specifically requested that plaintiff let Avnet know if there were any other documents he believed Avnet should be produced. These efforts easily satisfy the Court' "good faith effort" directive. Because plaintiff s cannot show by "clear and convincing evidence" that Avnet failed to comply with this Court' Order, plaintiff' request for a "show cause" hearing on the issue of civil s s contempt should be denied. B. Dismissal Is Not an Appropriate Sanction

Plaintiff requests that the Court dismiss certain of Avnet' defenses as a sanction s

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pursuant to Rule 37(d), Arizona Rules of Civil Procedure.8 The Arizona Rules of Civil Procedure are not applicable in this Court. The Federal Rules of Civil Procedure contain no rule similar to Arizona Rule 37(d). Assuming that plaintiff meant to cite Rule 37(b), Fed. R. Civ. P., dismissal sanctions are inappropriate because Avnet has not violated a court order. The Ninth Circuit restricts dismissal sanctions under Rule 37(b) to cases in which a party has failed to comply with a specific court order. Unigard Sec. Ins. Co. v. Lakewood Engineering & Mfg., 982 F.2d 363, 368 (9th Cir. 1992) (reversing the district court's exclusion of an expert witness as a sanction under Rule 37). Avnet complied with the Court's Order. Dismissal as a sanction pursuant to Rule 37(b) is inappropriate. Dismissal of Avnet's defenses is inappropriate under any provision of Rule 37 because Avnet' actions do not warrant such severe sanctions. It is well-established that s extreme sanctions such as striking pleadings or terminating the litigation by dismissal or default, are reserved for extreme circumstances. Southern Union Co. v. Southwest Gas Corp., 180 F.Supp.2d 1021, 1062 (D. Ariz. 2002) citing In re Exxon Valdez, 102 F.3d 429, 432 (9th Cir. 1996). Additionally, the absence of substantial prejudice resulting from discovery abuses and the availability of less drastic sanctions weigh against the imposition of severe sanctions. Id., citing Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990). The only federal case analyzed by plaintiff in support of his claim for the sanction of dismissal of Avnet' defenses, National Hockey League et al. v. Metropolitan Hockey s Club 427 U.S. 639 (1976), illustrates the high threshold for dismissal of a party' claims s or defenses. In National Hockey League, the Supreme Court reversed the Court of

Appeals' finding that the trial court had acted beyond its discretion in dismissing an action where there were several admonitions by the Court, unfulfilled promises and commitments by plaintiffs, flagrant bad faith where, after being directed by the court to
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Avnet assumes that by "dismiss" plaintiff means "strike" or "preclude."

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perform certain acts by a date certain, plaintiffs failed to perform and compounded their noncompliance by waiting until five days afterward to file any motion. Id. at 640-41. Additionally, the Supreme Court found that dismissal was warranted where plaintiffs had been repeatedly warned by the Court that failure to provide certain information could result in the imposition of sanctions under Fed. R. Civ. P. 37. Id. First, unlike the respondents in National Hockey League, Avnet did not violate an order from the Court. Second, Avnet' conduct in this case does not rise to nearly the s same level as the respondents' behavior in National Hockey League. At most, plaintiff has shown that Avnet has not answered all of plaintiff' extremely numerous discovery s requests and failed to preserve some third party websites that are not owned or controlled by Avnet. Neither of these actions rise to the level of misconduct required for an award of sanctions under Rule 37 ­ especially when one considers that Avnet has made efforts to respond to an extraordinary number of discovery requests 9 and that plaintiff had equal opportunity to preserve and did in fact preserve most of the third party websites at issue. Plaintiff further argues that dismissal is warranted under Arizona common law, the Arizona Rules of Civil Procedure, and Arizona case law. While these authorities are obviously not binding on this Court, analysis of the Arizona Court of Appeals' decision in Souza v. Fred Carries Contracts, Inc., cited by Plaintiff, demonstrates that dismissal is not warranted here. In Souza, the Arizona Court of Appeals court held that dismissal was not warranted where: (1) plaintiff did not willfully destroy evidence; (2) plaintiff did not violate a court order or abuse discovery procedures; (3) each party had equal access to the evidence and could have preserved it; (4) the destruction of the evidence did not irreparably prejudice the defendant' ability to present its case; and (5) the trial court s failed to consider other, less severe sanctions. If this Court were to apply the Souza
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Avnet submits that responding to more than 500 Requests for Admission and 50 Requests for Production constitutes at the very least a "good faith effort" even if it falls short of plaintiff' desired result. s

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court' reasoning, it would undoubtedly reach the same conclusion: dismissal is not s warranted. C. Lesser Sanctions Are Not Appropriate

Plaintiff next suggests that lesser sanctions may be appropriate. Plaintiff proposes that the Court issue a finding that Avnet "intentionally and knowingly infringed upon no fewer than three of Plaintiff' separate and individual copyrightable photographs." s Plaintiff' Motion at 11. This is a moot point, as the Court has already ruled as a matter of s law on each of these issues. The second remedy proposed by plaintiff ­ allowing him to present his damage calculations without challenge by Avnet ­ is equally off the mark. Plaintiff has indicated that he believes his damages in this case to be over $500,000. Allowing plaintiff to present such testimony without allowing Avnet to challenge it would be an unduly harsh sanction in light of Avnet' good faith conduct in this case. s Additionally, plaintiff' request for an adverse inference is misplaced here. The s instant case is set for a bench trial before this Court. It is undisputed that this Court will draw its own conclusions and make any inferences it deems necessary in conducting a fair trial of this matter on the merits. CONCLUSION Avnet respectfully requests that this Court deny plaintiff' Motion for Sanctions s and for an Order to Show Cause. Avnet has demonstrated that it did not violate this Court' October 3, 2005 Order and that it met the "good faith effort" standard articulated s by the Court. Plaintiff' "spoliation" claim and request for sanctions should be denied because s there is no evidence that Avnet destroyed evidence in this case. As for plaintiff' claim s regarding third party web sites, plaintiff' own documents show that he had observed, s copied and preserved at least a portion of most of these sites. The third party websites that

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are not listed in plaintiff' documents are not owned or controlled by Avnet. In any event, s there is no prejudice to plaintiff as Avnet admits that it distributed the offending photographs to these websites. If plaintiff deems it essential that he obtain logs of these sites, he can and should contact the owners of those sites. Avnet has preserved and disclosed its electronic web logs for Avnet' website and s has disclosed the printed copies of the 2002 and 2003 Annual Reports. Plaintiff should not be heard to complain that Avnet took too long to disclose its printed 2002 and 2003 Annual Reports when he had copies of them before this lawsuit was even filed. Avnet respectfully requests that the Court deny plaintiff' Motion in its entirety. s RESPECTFULLY SUBMITTED this 12th day of December, 2005. FENNEMORE CRAIG, P.C.

By s/Charles Houston Jordan Green Charles Houston Attorneys for Defendants Avnet, Inc., Roy Vallee, and Allen Maag

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CERTIFICATE OF SERVICE I hereby certify that on December 12, 2005, I electronically transmitted the attached document to the Clerk' Office using the CM/ECF System for s filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jordan Meschkow, Esq. Meschkow & Gresham, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818

s/Charles Houston 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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1741144/12444.027

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