                                                                               FILED
                             NOT FOR PUBLICATION                                MAY 24 2011

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U .S. C O U R T OF APPE ALS



                             FOR THE NINTH CIRCUIT



AARON DOYLE,                                       No. 10-35545

               Plaintiff - Appellant,              D.C. No. 2:09-cv-00158-RHW

  v.
                                                   MEMORANDUM *
BRIAN CHASE; LAW OFFICES OF
BRIAN CHASE PLLC,

               Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of Washington
                 Robert H. Whaley, Senior District Judge, Presiding

                         Argued and Submitted May 2, 2011
                                Seattle, Washington

Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

       Plaintiff Aaron Doyle appeals the district court’s grant of summary

judgment in his action under the Computer Fraud and Abuse Act (“CFAA”), 18

U.S.C. § 1030, against Brian Chase and the Law Offices of Brian Chase

(collectively, “Chase”). Doyle asserts that Chase violated the CFAA by accessing,



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
without Doyle’s authorization, Doyle’s USB thumb drive, which contained

personnel records sealed by the California state court. Doyle contends that he

satisfied the “loss” requirement as defined by 18 U.S.C. § 1030(e)(11) because of

his need for a forensic computer expert to detect and delete all of the documents

that were copied from the thumb drive to Chase’s computers.

      The district court concluded that even accepting Doyle’s theory of loss, his

assessment of loss is entirely speculative. We agree. Doyle bases his loss

assessment solely on two expert declarations. The district court correctly

concluded that the discussion of damages in the first declaration was too

speculative to survive summary judgment. See e.g., Soremekun v. Thrifty Payless,

Inc., 509 F.3d 978, 984 (9th Cir. 2007) (“Conclusory, speculative testimony in

affidavits and moving papers is insufficient to raise genuine issues of fact and

defeat summary judgment.”). The second, which attempts to calculate the basis for

the future expenditure of more than $5,000, was submitted well beyond the

discovery deadlines. The district court did not abuse its discretion by refusing to

consider this untimely declaration. See, e.g., Yeti by Molly, Ltd. v. Deckers

Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).

      AFFIRMED.




                                          2
