United States District Court, S.D. Ohio, Western Division
R. Biller, Paul M. De Marco, Andrew P. Kimble Markovits,
Stock & De Marco LLC Counsel for Plaintiffs
B. Dahman, Alexis V. Preskar Kohrman Jackson & Krantz LLP
Ghassan J. Deek Deek Law, LLC Counsel for Defendants Cousin
Vinny's Pizza, LLC, CVP17, LLC, Cousin Vinny's
Pizzeria, L.L.C., Cousin Vinny's Pizza #9 LLC, Third Day
Pizzeria, LLC, R&M Pizzeria, LLC, CVP014 LLC, CVP 16 LLC,
CVP18 LLC, CVP19 LLC, CVP DNC LLC, CVP Royality LLC, Dough
Boy Fresh LLC, CVP Dough LLC, CVP Dough 2, LLC, MGL Pizza,
LLC, CVP 10, Inc., and Mo Rashad
Walter H. Rice
AGREED ORDER ON PLAINTIFFS' MOTION FOR
MICHAEL J. NEWMAN MAGISTRATE JUDGE.
matter came before the Court on Plaintiffs' Motion for
Contempt (Doc. 34) (the "Motion"). In an effort to
discover the facts concerning the destruction of
mileage-related data in Defendants' possession and in the
hope that discovering such facts will help to resolve or
obviate the need for resolving issues raised in the Motion,
the parties have submitted this Agreed Order to the Court.
For good cause shown, IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that the Motion be resolved as follows by agreement
of the parties:
1. The forensic IT firm hired by Defendants, Binary
Intelligence, shall cease work immediately.
2. Within 7 days of the date of this Agreed Order, Plaintiffs
and Defendants will jointly select and retain a new forensic
IT/computer expert ("expert") to address the
computer-related issues raised in Plaintiffs' Motion and
related briefing. In the event that the parties are unable to
agree on an expert, the parties shall present their choices
to the Court, and the Court will select an expert. The Court
may select one of the parties' choices or any other
3. The Court will supervise future discovery into the missing
4. All communications between any party (or party's
counsel) and the expert shall take place jointly with counsel
for Plaintiffs and Defendants present or copied
(i.e., no ex-parte communications), and to the
extent such communications are in writing, the Court shall be
5. To the extent the expert believes it necessary, Defendants
will permit the expert to enter their facilities in order to
image and/or clone the computers and other machines that may
contain delivery-related data at each of Defendants'
store locations and from any Cousin Vinny's office or
headquarters. These site visits will be completed outside
Cousin Vinny's regular business hours and/or overnight
over a series of nights, if necessary.
6. To the extent the expert believes it necessary, Defendants
will provide the expert with complete access to the computers
and/or other machines that may contain delivery-related data,
all necessary computers, servers, hard drives, and other
sources and/or repositories of data from each of its store
locations and from any Cousin Vinny's office or
headquarters to the expert.
7. The expert's work will be focused on the following:
(1) determining the causes, circumstances, and time line
related to the data deletion or destruction referenced in
Plaintiffs' Motion and the related filings; (2)
retrieving all data relating to deliveries completed at the
each of the stores from December 23, 2013 through July 2016;
(3) providing a report to the Court, and to the parties (a)
stating whether the data was recoverable and, if not, why
not, (b) identifying which data could be recovered and which
could not, and (c) identifying the timing and causes, to the
extent discernible, of any deletion or destruction of data
and, in so doing, distinguishing the deleted or destroyed
data that was recoverable from that which was not
recoverable. The expert shall not disclose to Plaintiffs any
Cousin Vinny's information not relating to payroll,
employee compensation, mileage, the hack of Cousin
Vinny's computer systems, the data reset of Cousin
Vinny's computer systems, or other topics pertaining to
Plaintiffs' claims of minimum wage violations or any
other source of data loss.
8. Defendants shall pay for the services provided by the
expert and all other costs and expenses related thereto.
9. The Court will decide whether attorney fees are
appropriate, and if so the amount of attorney fees and costs
to be awarded to Plaintiffs in connection with the matters
addressed in Plaintiffs' Motion and the related filings.
Within 14 days of this Order, Plaintiffs may file a motion in
support of a fee award. Defendants will have 14 ...