InteliClear, LLC v. Victor

Filing 139

ELECTRONIC ORDER REGARDING DISCOVERY (see attached). (See Dkt. # 137). Signed by Judge Joan G. Margolis on 6/28/2017.(Watson, M.)

ELECTRONIC ORDER IN INTELICLEAR, LLC V. VICTOR, 16 CV 1403 (JBA)
6/28/17 – Familiarity is presumed with this Magistrate Judge’s lengthy Electronic Orders Regarding
Discovery, filed April 24, 2017 and May 5, 2017 (Dkts. ##118 & 121; see also Dkt. #122).
On June 7, 2017, defendant forwarded a six-page letter to this Magistrate Judge,1 as to
which plaintiffs’ counsel responded in a seven-page letter one week later. A lengthy telephonic
discovery conference was held with respect to the issues raised in these letters on June 21, 2017.
(Dkt. #137). The following four issues were addressed in the letters and discovery conference.2
(1) General Discovery Issues – Format of ESI – Defendant has requested that plaintiffs
identify which documents were responsive to which requests by providing him with the Batesnumbers responsive to each request, whereas plaintiffs contend that they have complied with FED.
R. CIV. P. 34(b)(2)(E) by producing these documents as they were kept in the usual course of
business, primarily .pdf files, or Microsoft Excel workbooks and QuickBooks databases. (6/7/17
Letter at 2; 6/14/17 Letter at 2-3). As plaintiffs’ counsel explained during the telephonic discovery
conference, most of the documents produced (approximately 3,000 of them) were .pst files, that
are backup files for their email system and attachments thereto, essentially a “mirror image” of the
system itself. Under these circumstances, there is no requirement to impose an additional burden
for plaintiffs beyond that required under Rule 34(b)(2)(E).
(2) General Discovery Issues – Post-Dissociation Items – Defendant has requested postdissociation information, such as “what expenses have been paid out, whether compensation of
the members has changed at all and what benefits the other members are taking[,]” which he
contends is relevant, inter alia, to his “estoppel type defense to this action”; plaintiffs respond that
during the March 27, 2017 telephonic status conference, Judge Arterton ordered plaintiffs to
produce all pre-dissociation books and records, with which they have complied. (6/7/17 Letter at
2-3; 6/14/17 Letter at 3-4).3 Given Judge Arterton’s multiple rulings on the issue of dissociation,
and her characterization that the date of dissociation was a “logical defining line” with regard to
discovery, this Magistrate Judge agrees with plaintiffs’ counsel, that as of the present, postdissociation discovery is not required. 4
(3) Barretto’s Responses & Objections to First Set of Discovery (6/7/17 Letter at 3; 6/14/17
Letter at 4-5) – With respect to Requests Nos. 12 and 37, Barretto shall respond only to the extent
that he has in his possession any documents not already produced by Brandon Consulting, of which
his wife is a principal.5 As described by plaintiffs’ counsel, it appears that plaintiffs have fully

1

Attached as Exh. A was a copy of correspondence between counsel, dated May 24, 2017.

2

Some issues were resolved between counsel (see 6/7/17 Letter at 3; 6/14/17 Letter at 3, 7),
which the Court appreciates.
3

There is no transcript of this conference. (Dkt. #111; see Dkt. #121, at 2, n.3).

4

The same conclusion is reached with respect to Nos. 5, 7-10 of Plaintiffs’ Responses & Objections
to Second Set of Discovery Requests. (6/7/17 Letter at 4-5; 6/14/17 Letter at 6).
5

The parties reached an agreement during the conference with respect to Request No. 41.

complied with the requirements of FED. R. CIV. P. 26(b)(3) and 26(b)(4), and Local Rule 26(e).
Thus, neither a privilege log nor any further production is required with respect to Requests Nos.
43-45.6
(4) Plaintiffs’ Responses & Objections to Second Set of Discovery Requests (6/7/17 Letter
at 4-5; 6/14/17 Letter at 6) – Regarding Requests Nos. 1-3, as explained by both counsel during
the telephonic discovery conference, plaintiff InteliClear apparently does not maintain its own set
of computer servers on which it retains emails, but instead simply forwards emails sent to an
“@inteliclear.com” email address to the personal email of that person, and then deletes them.
When he resided in Connecticut, defendant utilized a personal email provided by his cable
company, “@optonline.net,” on which his work emails were held, but when he relocated to Florida
and closed out his Connecticut cable account, his emails were all deleted without having been
saved. Defendant is willing to limit his request to plaintiffs’ production of pre-dissociation emails.
Plaintiffs contend that they already have produced emails responsive to relevant requests for
production that were sent to, from, or in response to emails sent to the five email addresses listed
in Requests Nos. 1-3, and that they should not have to bear the burden of recreating defendant’s
entire email account, including emails that are not relevant to this lawsuit. Under these
circumstances, when defendant did not take the requisite steps to protect his home email account
(on which his work emails were stored) before he moved from Connecticut to Florida, plaintiffs
need not produce any further emails with respect to these three discovery requests.
With respect to Request No. 11, defendant seeks a privilege log of all documents as to
which plaintiffs assert the attorney-client or work product privilege. Plaintiffs contend they have
produced all non-privileged documents responsive to Request No. 11, but that the attorney-client
and work product privilege began with the lawsuit filed by defendant in the Connecticut Superior
Court in Litchfield in September 2015, which was removed by plaintiffs to this district in May 2016
and assigned to Judge Bryant. Judge Bryant dismissed that action on August 15, 2016 after
defendant filed a Notice of Voluntary Dismissal, whereupon two days later, on August 17, 2016,
plaintiffs commenced this lawsuit, in which they asserted the same claims as those previously
raised in their counterclaims in the prior lawsuit. Given this continuum of events, the Magistrate
Judge agrees that the attorney-client privilege and work product doctrine began with the
September 2015 lawsuit, and no further production is required by plaintiffs.
This is not a Recommended Ruling, but a ruling on a non-dispositive motion, the standard
of review of which is specified in 28 U.S.C. § 636; FED. R. CIV. P. 6(a), 6(e) & 72; and Rule 72.2 of
the Local Rules for United States Magistrate Judges. As such, it is an order of the Court unless
reversed or modified by the District Judge upon timely made objection.
See 28 U.S.C. § 636(b)(written objections to ruling must be filed within fourteen
calendar days after service of same); FED. R. CIV. P. 6(a) & 72; Rule 72.2 of the Local Rules
for United States Magistrate Judges, United States District Court for the District of Connecticut;
Impala v. United States Dept. of Justice, 670 F. App’x 32 (2d Cir. 2016)(summary order)(failure to
6

The same conclusion obviously applies to Powell’s Responses & Objections to First Set of
Discovery Requests and DeVito’s Responses & Objections to First Set of Discovery Requests. (6/17/17
Letter at 4; 6/24/17 Letter at 4, n.3).

2

file timely objection to Magistrate Judge’s recommended ruling will preclude further appeal to
Second Circuit); cf. Small v. Sec'y, H&HS, 892 F.2d 15, 16 (2d Cir. 1989)(failure to file timely
objection to Magistrate Judge's recommended ruling may preclude further appeal to Second
Circuit).

3