UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CARD CONNECT, LLC
Plaintiff,
v.

SHIFT4 PAYMENTS, LLC and
SHIFT4 CORPORATION
Defendants.

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Case No. 2:17-cv-04989-MAK

DEFENDANTS’ MOTION TO COMPEL DISCOVERY

Defendants Shift4 Payments, LLC and Shift4 Corporation (“Shift4”) respectfully file this Motion to Compel Discovery from Plaintiff Card Connect, LLC (“CardConnect”).
INTRODUCTION
This case is about the theft of Shift4’s trade secrets and other confidential and proprietary
information by a former employee of Shift4, and CardConnect’s use of that stolen information to,
among other things, poach customers from Shift4. CardConnect and the employee, Robert (aka
Randy) Carr, took a number of steps to try to conceal their nefarious conduct. For example, the
Complaint suggests CardConnect was unaware of Mr. Carr’s wrongdoing until July 2017, Ex. A-10,
but in its response to Interrogatory No. 6, CardConnect admits Mr. Carr used his personal Gmail
account to send over 14,000 emails to CardConnect employees between January 24, 2017 and July
17, 2017. Ex. A-7 to A-9. In contrast, CardConnect’s document production only includes 41
documents produced by Mr. Carr.
In response to Shift4’s First Set of Interrogatories and First Request for Production of
Documents seeking discovery of Mr. Carr’s illicit conduct and the involvement of CardConnect,
CardConnect repeatedly asserted meritless objections, refused to produce highly relevant text

messages and communications from personal devices and/or accounts, and otherwise failed to
provide sufficient responses. Shift4 attempted to resolve these disputes through multiple meet and
confer telephone calls on May 15, 2018 and May 21, 2018, and multiple letters, Ex. A-1 to A-6, but
CardConnect has refused to cure the deficiencies, which necessitates this Motion.
FACTUAL BACKGROUND
Shift4 provides payment gateway services to merchants. Ex. B ¶ 8. Payment gateway
services act as an intermediary between a merchant’s point-of-sale system (“POS”) and the credit
card processor. Ex. B ¶ 8.
Randy Carr worked for Shift4 as an account manager for more than ten years. Ex. B ¶ 10.
In December 2016, Mr. Carr signed an agreement with CardConnect pursuant to which
CardConnect agreed to pay Mr. Carr $25,000 to terminate his employment with Shift4 and assist
CardConnect in the solicitation of Shift4’s customers. Ex. B ¶ 16, Ex. C.
On January 3, 2017, Mr. Carr notified Shift4 of his intent to resign. Ex. B ¶ 21. By this
time, Mr. Carr had already downloaded more than 11 gigabytes of Shift4’s trade secrets,
confidential and proprietary information, and provided a substantial portion of that information to
CardConnect, a direct competitor. Ex. B ¶¶ 17, 47. Mr. Carr sent this information from his Shift4
computer to his personal email account and Dropbox account, as well as placing it on a physical
thumb drive. Ex. B ¶ 19. Mr. Carr also forwarded sensitive internal emails from his Shift4 email
account to his personal email account. Ex. B ¶ 20.
On January 24, 2017, after informing Shift4 of his intent to resign, Mr. Carr began
working for CardConnect and soliciting Shift4 customers, using Shift4’s confidential and
proprietary information to assist him. Ex. B ¶¶ 6, 47-48.
On July 17, 2017, CardConnect’s counsel sent a letter to Shift4’s counsel, enclosing a
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“forensic report” authored by a third-party vendor called Digital Discovery. See Dkt. No. 1, Ex. H at
2. The letter acknowledged that Mr. Carr had Shift4 documents in his possession and sent them to
CardConnect and, remarkably, CardConnect claimed, for the first time, that it had only become
aware of these facts a week earlier. Id. This explanation is incredible because, as described above,
CardConnect has admitted that Mr. Carr used his personal Gmail account to communicate with
CardConnect employees over 14,000 times from January 24, 2017 to July 17, 2017. Ex. A-7 to A-9.
ARGUMENT
I. Legal Standard
The scope of permissible discovery is broad, but not unlimited. Parties are permitted to
“obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case . . . .” Fed. R. Civ. P. 26(b)(1). Information is
relevant, and thus discoverable, if it “appears reasonably calculated to lead to the discovery of
admissible evidence.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351-52 (1978). The
Federal Rules of Civil Procedure, including the rules governing discovery, must be “construed,
administered, and employed by the court and the parties to secure the just, speedy, and inexpensive
determination of every action and proceeding.” Fed. R. Civ. P. 1. In furtherance of that purpose,
the Federal Rules permit a party to move to compel discovery responses when a party fails to respond
to proper discovery requests. Fed. R. Civ. P. 37(a)(3)(B).

II. CardConnect Has Improperly Withheld Relevant Documents.

A. Shift4’s Document Requests Seek Relevant Information.

Shift4’s document requests seek documents and communications related to Mr. Carr’s
misappropriation of Shift4’s confidential and proprietary information, and CardConnect’s
involvement. See Ex. A-7, Requests for Production Nos. 6-7, 9-11, 14, 25. These requests are
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directly relevant (and proportional) to Shift4’s counterclaims against CardConnect for misappropriation
of trade secrets and tortious interference with Shift4’s customer contracts.

B. CardConnect Must Produce Communications From Personal Devices and Accounts.
CardConnect contends that is it not required to provide electronic communications from
Mr. Carr’s personal devices and accounts. See Ex. A-1 at 2. CardConnect is wrong.
In Joint Stock Co. v. Reebok Int’l Ltd., the defendant similarly objected, inter alia, to
producing email communications in discovery because such communications resided on personal
computers of employees. 903 F. Supp. 2d 29, 35 (D. Mass. 2012). The court overruled the
objection because the requested communications were “plainly relevant” to the claims at issue. Id.
And, as in this case, the documents requested were “within the possession, custody or
control of a party . . . because the corporate officers and employees are agents of the corporation,
and the corporation can direct them to produce documents and ESI in their possession.” Id.; see
also In re NTL, Inc. Sec. Litig., 244 F.R.D. 179, 195 (S.D.N.Y. 2007) (“Courts in [the Second]
Circuit have not hesitated to order the production of documents or ESI from personal email
accounts so long as the discovery sought is relevant.”); Continental Cas. Co. v. Symons, No. 1:11-
CV-861, ECF No. 178 (N.D.N.Y. Sept. 30, 2014) (“[I]f Symons utilized a personal email account
to conduct any business of [his former employer], the emails within that account, to the extent they
are relevant, must be produced.”); Fed. R. Civ. P. 34 (“A party may serve on any other party a
request . . . to produce and permit the requesting party or its representative to inspect, copy, test, or
sample [any designated documents or electronically stored information] in the responding party’s
possession, custody, or control . . . .”) (emphasis added).
Here, the Complaint alleges Mr. Carr improperly used Shift4’s confidential and proprietary
information to solicit Shift4’s customers on behalf of CardConnect. Further, CardConnect has
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admitted that Carr has sent approximately 14,800 emails to CardConnect and/or CardConnect
employees from his personal Gmail account. Ex. A-7 to A-9. CardConnect does not—and cannot—
contend that the documents on these personal accounts and devices are irrelevant. Rather, it claims
that Mr. Carr’s decision to utilize personal email accounts to communicate with CardConnect
employees somehow absolves CardConnect of its obligation to search for and produce responsive
and relevant discovery. It has identified no authority for such an outlandish contention because none
exists.

C. CardConnect Has Improperly Redacted Information, Including the Number of
Customers CardConnect Solicited, Quoting the Digital Discovery Report, and Refusing to
Produce the Digital Discovery Forensic Report.

CardConnect admitted to soliciting Shift4 customers, but refuses to identify which customers it
has solicited. CardConnect further quoted excerpts of the Digital Discovery report in its
responses, but improperly withheld sections of the purportedly inculpatory report (which was
already provided to Shift4 in July 2017). Ex. A-7 to A-9. This violates basic principles of
discovery. See Autotech Techs., L.P. v. Automationdirect.com, Inc., 236 F.R.D. 396, 398 (N.D. Ill.
2006) (“It is axiomatic that a party may not redact relevant and responsive information from a
document . . . .”); B. Braun Med, Inc. v. Abbott Labs., No. CV 15-3838, ECF No. 154 (E.D. Pa.
Apr. 24, 2018).
Notably, CardConnect does not base its truths on any claim of privilege, which
might allow it to withhold portions of documents under very limited circumstances. See, e.g.,
E.D. Pa. Civ. Rule 26.1(c)(2). Rather, CardConnect claims that it is entitled to redact portions of
documents that it deems unresponsive. Once again, CardConnect has identified no authority to
support this position, and Shift4 is not aware of any.

D. CardConnect Must Produce the Forensic Report Provided to Shift4 in July 2017.

Shift4’s Request for Production No. 25 seeks production of the “forensic report”
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authored by Digital Discovery, which CardConnect’s counsel provided to Shift4 on July 17, 2017.
Ex. A-7. CardConnect initially objected to this on the basis, inter alia, that the report was prepared
in anticipation of litigation. Ex. A-7 at 29-31. That objection is baseless (and moot) because
CardConnect has repeatedly cited to – and in some instances, quoted directly from – this very
report in its discovery responses. See, e.g., Ex. A-9 at 4, 8. Therefore, CardConnect has, at a
minimum, waived any claim of privilege. See, e.g., In re Chevron Corp., 650 F.3d 276, 292 (3d
Cir. 2011) (finding waiver where party “placed these documents ‘at issue’ in the litigation through
its affirmative use of the documents and its claims and defenses”); In re Grand Jury (Impounded),
138 F.3d 978, 983 (3d Cir. 1998) (same). When presented with this authority, CardConnect
acknowledged waiver, but stated it would produce the forensic report subject to an agreement to
enter into a “clawback” agreement.1 However, CardConnect has now (improperly) changed
course and refuses to produce this non-privileged document. It must be compelled to do so.

III. CardConnect Has Refused to Provide Complete Answers Regarding the Solicitation
of Shift4’s Customers.

CardConnect has improperly responded to Shift4’s interrogatories related to CardConnect’s
solicitation of Shift4’s customers. For instance, Interrogatory No. 9 asks CardConnect to state the
number of Shift4 customers that were solicited by, inter alia, Mr. Carr. See Ex. A-9 at 4.
CardConnect objected to this question on numerous grounds, including its assertion that the term
“solicit” is subject to multiple interpretations. Id. In response, Shift4 offered the following
definition, consistent with Pennsylvania law:
1

Although Shift4 contends that no clawback provision is necessary because
CardConnect’s disclosure of this report destroyed any potential privilege, Shift4 nonetheless
agreed to consider and discuss a potential protocol for allegedly privileged material.

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For purposes of these interrogatories, the term “solicit” shall mean the act of approaching
a potential customer with a request or plea, whether that request or plea is in writing, by
electronic communication, by oral communication, or any other method of communication.
See also Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 393 A.2d 1175, 1184 (Pa.
1978).
CardConnect accepted and even adopted Shift4’s definition, but still has only provided a
evasive response. First, CardConnect’s response quotes extensively from the Digital Discovery
Report. See Ex. A-9 at 4. But curiously, it edits its quotation to stop just short of answering the
question. See id. (quoting the Digital Discovery Report and ending the quotation with an ellipsis).
Second, the rest of CardConnect’s response states:
The Digital Discovery Report identified the number of clients actually solicited by Mr.
Carr based on the findings in Mr. Carr’s personal Gmail account. According to the
Digital Discovery Report, there were 23 customers in which there was evidence that those
customers were solicited by Mr. Carr, starting on January 13, 2017.
Id. (internal citations and quotations omitted).

CardConnect has provided two answers to this interrogatory: (i) a quote that ends
mysteriously in the middle of a sentence; and (ii) a statement that this information is “according to
the Digital Discovery Report.” But of course, CardConnect has failed to produce that report. This
response is evasive, incomplete, improperly redacted, in addition to all of CardConnect’s meritless
objections. Shift4 moves to compel CardConnect to fully and fairly answer this interrogatory.
IV. CardConnect Has Refused to Provide Complete Answers Regarding Communications
Between CardConnect and Randy Carr.
Shift4 sought the following additional discovery regarding communications between
CardConnect and Mr. Carr that CardConnect has improperly refused to provide:
Interrogatory No. 4:
State the number and describe the content of the voice
conversations between Mr. Carr and any employee, agent, representative or
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independent contractor working on behalf of CardConnect occurring from
December 1, 2016 to July 17, 2017.
Request for Production No. 6:
All call logs from the telephones for all employees, agents, representatives and
independent contractors working on behalf of CardConnect discussing Mr. Carr or
Shift4 from December 1, 2016 to the date of the production.
Request for Production No. 7:
All call logs from the telephones for all employees, agents, representatives and
independent contractors working on behalf of CardConnect discussing Mr. Carr or
Shift4 from December 1, 2016 to the date of the production.
Request for Production No. 9:
All ESI reflecting communications of any kind regarding Mr. Carr and/or Shift4
from December 1, 2016 to the date of the production.
Request for Production No. 10:
All ESI regarding Mr. Carr from December 1, 2016 to July 17, 2017.
Request for Production No. 11:
All ESI regarding Mr. Carr discussing Shift4 customers from December 1, 2016 to
July 17, 2017.
Request for Production No. 14:
All “text message” and/or “SMS” communications to, from, or regarding Mr. Carr,
and/or regarding Shift4, between CardConnect and/or any third party from
December 1, 2016 to the date of the production.
CardConnect refuses to provide any information concerning text messages, claiming that it
has produced responsive “emails” so it need not produce responsive “text messages.”2 Ex. A-1 at 2.
This is absurd. The form of the electronic communication, be it email, text, SMS, instant message,
etc., is irrelevant. See, e.g., EEOC v. Kelley Drye & Warren LLP, No. M-82, ECF No. 17 (S.D.N.Y.
Nov. 5, 2010) (ordering production of “text messages” responsive to discovery requests); Rahman v.
Smith & Wollensky Rest. Grp., Inc., No. 06 Civ. 6198, 2007 WL 1521117, at *8 (S.D.N.Y. May 24,
2007) (ordering production of voicemails responsive to discovery requests).
2

As discussed above, CardConnect has also improperly refused to produce documents from
Mr. Carr’s personal devices and accounts.

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CardConnect refused to provide any voice conversations between Mr. Carr and, inter alia,
any CardConnect employee. Interrogatory No. 4; RFP Nos. 6-7. CardConnect objected initially
on the basis that, inter alia, it would require CardConnect to unlawfully “spy” on employees. Ex.
A-8 at 18; Pls.’ Resp. to Defs.’ First Request for Production of Documents, Ex. A-7 at 11-12
(“CardConnect cannot provide call logs or recordings as requested because it cannot ‘spy’ on
employees in that manner.”). In response, Shift4 informed CardConnect that its document
demands plainly do not seek “unlawful” interception of phone calls, and instead seek “call logs.”
Ex. A-4. Likewise, Shift4 informed CardConnect that its interrogatory did not ask for unlawful
conduct, but instead asked CardConnect to state the number of voice conversations and provide the
content of any such communications. Id. CardConnect then supplemented its Response to
Interrogatory No. 4 to claim (for the first time) that “[n]o responsive voice conversations exist
related to Mr. Carr” and directed Shift4 to “[s]ee CardConnect’s responses to Shift4’s Requests for
Production generally.” Ex. A-8 at 19.
Notwithstanding CardConnect’s belated claim that there are “no responsive voice
conversations,” its response to Interrogatory No. 4 remains deficient. For example, this response
fails to state whether any voice conversations occurred from December 1, 2016 and July 17, 2017
between Mr. Carr and any employee, agent, representative or independent contractor working on
behalf of CardConnect relating to Shift4, as the interrogatory requests. See id. Furthermore,
CardConnect’s directive to look for conversations in documents elsewhere is a classic “document
dump” and is improper. See, e.g., In re: Auto. Refinishing Paint Antitrust Litig., 2002 WL
31421682, *2, n. 2 (E.D. Pa. 2002) (“Another evasive discovery tactic is a ‘document dump,’ that
is, producing a large quantity of unrequested documents in response to a mutually agreeable
document request”); S.E.C. v. Collins & Aikman Corp., 256 F.R.D. 403, 410 (S.D.N.Y. 2009) (noting
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that a response to discovery requests is deficient where it directs the requesting party to a mass of
documents, “rather than specifying the documents from which the answers could be derived”);
Wagner v. Dryvit Sys., Inc., 208 F.R.D. 606, 610 (D. Neb. 2001) (finding a “document dump” is
an unjustified and inappropriate response to a discovery request).
Accordingly, Shift4 moves to compel CardConnect to fully answer Interrogatory No. 4,
without objection, and produce all documents related to the voice conversations identified therein,
including without limitation audio recordings and call logs (RFP Nos. 6-7), as well as all ESI
reflecting calls, messages, or other communications between CardConnect and Mr. Carr (RFP Nos.
9-11, 14).
V. CardConnect Must Produce Documents Related to Its Employee, Robert
Kost, Who Has Been Similarly Situated to Mr. Carr.
Shift4 also seeks discovery related to CardConnect employee Robert Kost, who is
similarly situated to Mr. Carr. CardConnect has objected to RFP Nos. 20-22.3
Request for Production No. 20:
All documents stating, reflecting, regarding or relating to Robert Kost’s
communications with, or discussions regarding, any customer or prospective
customer of Shift4.
Request for Production No. 21:
All documents stating, reflecting, regarding or relating to Robert Kost’s employment
with CardConnect.
Request for Production No. 22:
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All documents stating, reflecting, regarding or relating to Robert Kost.

CardConnect has asserted the same objections to all of these requests, namely, that they
purportedly violate Mr. Kost’s privacy rights and the request is “vague, ambiguous, overbroad,
unduly burdensome, and not reasonably calculated to lead to the discovery of admissible
evidence.” Ex. A-7 at 27-28.

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Mr. Kost, similar to Mr. Carr, previously worked for a company that was acquired by
Shift4. Ex. A-4 at 2. Mr. Kost resigned from Shift4 the same day as Mr. Carr, and, upon
information and belief, solicited Shift4 customers to leave Shift4 and join CardConnect. Id.
CardConnect refused to produce any documents related to Mr. Kost. See Ex. A-7 at 27-28.
CardConnect further admitted that Mr. Kost, like Mr. Carr, “sometimes uses his
personal e-mail account to conduct business on behalf of CardConnect.” Ex. A-9 at 8.
CardConnect further admitted that Mr. Kost “communicated with Shift4 customers and prospective
customers.” Ex. A-9 at 8. CardConnect attempts to distinguish Mr. Kost from Mr. Carr, see Ex. A-
9, but Shift4 is entitled to take discovery on this topic and CardConnect’s contention that they are
distinguishable is an issue of fact that has no bearing on whether the documents sought are
discoverable. Shift4 is entitled to explore the similarities and/or differences between these two
individuals, who are both alleged to have engaged in misconduct, and who both decided to leave
Shift4 on the exact same day, January 3, 2017.
CardConnect also raises privacy concerns. Ex. A-7. CardConnect’s privacy (and
overbreadth) objections lack merit for several reasons.4 First, Shift4 is entitled to all
communications to, from, or relating to Kost’s communications with Shift4’s customers. RFP No.
20; see also Ex. A-9 at 8 (admitting Mr. Kost communicated with such consumers). Second,
documents regarding Mr. Kost’s employment are explicitly discoverable. See, e.g., United States
v. گئیں. No. 13-4087, ECF No. 75 *26 (D.N.J. Feb. 7, 2017) (“[E]mployment files . . . are
routinely subject to discovery.”); Calkins v. Dollarland, Inc., 117 F. Supp. 3d 421, 437 (S.D.N.Y.
2015) (“[F]ederal and state courts have routinely granted discovery of personnel files where
relevant to the claims and defenses in a case.”); Walker v. George Koch Sons, Inc., No. 12-1048,
4

CardConnect objects to Request No. 22 on the basis that it is “vague and ambiguous.” Ex.
A-7. But the term “relating to” is not vague or ambiguous. See, e.g., Johnson Matthey, Inc. v.
Baggot, No. 07-4413, 12. Pa. Dist. & Cnty. Dec. Lexis 235, *1, n.1 (Pa. County Ct. 2011).

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ECF No. 93 (S.D. Miss. Feb. 25, 2014).
Third, Mr. Kost utilized personal email accounts to communicate with CardConnect, and
therefore emails from such account are not private for the reasons described in detail in section IIB
of this Motion.
Notwithstanding its dubious objections, CardConnect claims it produced “non-privileged
documents” responsive to the discovery requests. See Ex. A-7 at 27-28. CardConnect did not
produce a privilege log, and therefore has not met its burden of establishing the documents withheld
are privileged. Regardless, Shift4 is entitled to the information sought in RFP Nos. 20-22, even if it
had produced some documents.
CONCLUSION
WHEREFORE, Shift4 respectfully requests that this Court enter an Order finding
CardConnect’s objections lack merit, compelling CardConnect to produce full and complete
responses to Shift4’s First Set of Interrogatories and First Request for Production consistent with
the argument and authority herein, and to award Shift4 all relief permitted by Rule 37 of the Federal
Rules of Civil Procedure.
Dated: May 29, 2018

Respectfully submitted,
/s/ Charles A. Fitzpatrick, IV
Charles A. Fitzpatrick, IV (PA 79073)
James D. Hollyday (PA 321115)
SAUL EWING ARNSTEIN & LEHR LLP
Centre Square West, 1500 Market Street
38th Floor
Philadelphia, Pennsylvania 19102
Telephone: (215) 972-7777
Facsimile: (215) 972-7725
charles.fitzpatrick@saul.com
james.hollyday@saul.com

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Brian M. Nichilo (pro hac vice pending)
NIXON PEABODY LLP
55 West 46th Street
New York, NY 10036-4120
Telephone: (212) 940-3194
bnichilo@nixonpeabody.com
Seth L. Berman (pro hac vice pending)
NIXON PEABODY LLP
One Embarcadero Center, 18th Floor
San Francisco, CA 94111-3996
Telephone: (415) 984-8318
sberman@nixonpeabody.com
Attorneys for Defendant, Shift4 Payments, LLC,
and Counterclaim-Plaintiff, Shift4 Corporation
CERTIFICATE OF SERVICE
I, Charles A. Fitzpatrick, IV, Esquire, hereby certify that on May 29, 2018, I caused a
true and correct copy of the foregoing document to be filed electronically with the Clerk of Court
using the CM/ECF system, which will send notification of such filing to all counsel of record
registered to receive such notice.
/s/ Charles A. Fitzpatrick, IV
Charles A. Fitzpatrick, IV
Attorney for Defendants
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