CIANCIOLO v. AVMED INC

Filing 51

ORDER: Plaintiff's 26 Amended Motion to Compel Production of Documents is DENIED without prejudice; Plaintiff's 47 Motion to Compel Production of Documents and After Documents are Produced to Compel Production of Wit ness to be Re-Deposed is GRANTED IN PART and DENIED IN PART. Defendant's documents identified on its privilege log are protected by attorney-client privilege and Defendant not required to produce those documents to Plaintiff. Clerk instructed to place Defendant's file folder of documents bates stamped AVMED PRIV 00001 to AVMEND PRIV 000555 under seal. Parties' respective requests for attorney's fees and expenses in filing the motions to compel and responding to motions are DENIED. Signed by MAGISTRATE JUDGE GARY R JONES on 4/12/2012. (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
KIRK CIANCIOLO, D.O.,
Plaintiff,
v.

CASE NO. 1:11-cv-196-SPM-GRJ

AVMED, INC., d/b/a
AVMED HEALTH PLANS,
Defendant.
_____________________________/
ORDER
On April 10, 2012 the Court conducted a continued hearing1 to address Plaintiff’s
Amended Motion To Compel Production of Documents. (Doc. 26.) Additionally, the
Court addressed Plaintiff’s Motion To Compel Production of Documents and After
Documents are Produced to Compel Production of Witness to be Re-Deposed (Doc.
47), which was filed on April 9, 2012, the day before the hearing. Lastly, the Court
addressed the Defendant’s privilege log, which was served on April 6, 2012 (Doc. 41)
and the status of production of ESI.
In Plaintiff’s Amended Motion To Compel Production of Documents, Plaintiff
requested the Court to compel Defendant to produce certain documents responsive to
Plaintiff’s first request for production. In an effort to narrow the ongoing discovery
issues on April 9, 2012 Defendant filed supplemental responses to the Plaintiff’s first
request for production. (Doc. 47.) The supplemental responses detail by description
and date produced documents responsive to Plaintiff’s Amended Motion to Compel.

1

The Court previously addressed the m otion on March 29, 2012 but continued the hearing so that
counsel could confer regarding issues relating to electronically stored inform ation (“ESI”) and to enable the
Defendant to com plete preparation of its privilege log. (Doc.

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Plaintiff’s counsel advised the Court that these supplemental responses addressed the
majority of his concerns. Accordingly, Plaintiff’s Amended Motion to Compel is due to
be denied. However, because Plaintiff’s counsel has not been afforded with an
opportunity to review the supplemental responses in detail and to examine each of the
documents provided, the Court directed Plaintiff to address any issues with counsel for
Defendant if Plaintiff determines after his review that a category of the requested
document(s) are not addressed in Defendant’s supplemental responses. Any
unresolved issues may then be presented to the Court for resolution if necessary.
In Plaintiff’s Motion To Compel Production of Documents and After Documents
are Produced to Compel Production of Witness to be Re-Deposed (“Plaintiff’s Second
Motion to Compel”) (Doc. 47), Plaintiff advises that he was provided with additional
documents on Friday, April 6, 2012, produced from the file maintained by Ed Hannum,
Defendant’s President and Chief Operating Officer. These documents consist of
handwritten notes from a file Mr. Hannum testified about at Mr. Hannum’s April 4, 2012
deposition. One of the documents identified at Mr. Hannum’s deposition were
handwritten notes from an October 11, 2012 meeting between Mr. Hannum and
Plaintiff.
At the hearing Defendant’s counsel represented that all of the handwritten notes
in Mr. Hannum’s file were produced to Plaintiff but that despite Mr. Hannum’s testimony
Defendant has not identified any notes of the October 11, 2011 meeting.
Plaintiff requests the Court to compel Defendant to produce the notes from the
October 11, 2012 meeting and that the Court grant Plaintiff permission to depose Mr.
Hannum with regard to the handwritten notes delivered to counsel after the conclusion
of Mr. Hannum’s deposition.
Case No: 1:11-cv-196-SPM-GRJ

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For the reasons discussed by the Court on the record at the hearing, Plaintiff’s
Second Motion to Compel is due to be granted to the extent that Plaintiff shall be
permitted to depose Mr. Hannum. The deposition shall be limited to examination
reasonably related to the documents delivered to Plaintiff after the deposition and shall
be conducted in Tampa, Florida either on a date to coincide with the party’s scheduled
mediation session on April 23, 2012 or no later than April 30, 2012. In all other
respects Plaintiff’s Second Motion to Compel is due to be denied.
The Court also addressed at the hearing the most efficient procedure for
determining whether the documents identified on Defendant’s privilege log are subject
to protection under the attorney-client privilege. The amended privilege log, served by
Defendant, identified 555 documents bates stamped AVMED PRIV 00001 to AVMED
PRIV 000555. The parties jointly requested the Court to conduct an in camera review of
the documents to determine whether the documents were subject to the attorney-client
privilege. In this regard, Defendant provided the Court with a copy of the privilege log
and copies of each of the documents identified on the privilege log.2
The Court has now conducted the in camera review of the documents identified
on Defendant’s privilege log. After reviewing each of the documents the Court
concludes that each of the documents bates stamped AVMED PRIV 00001 to AVMED
PRIV 000555 are protected from disclosure by the attorney-client privilege. Accordingly,
Defendant is not required to produce to Plaintiff the documents bates stamped AVMED
PRIV 00001 to AVMED PRIV 000555.
Lastly, the Court and the parties discussed the progress of the ongoing

2

The Court advised the parties that the copies of the docum ents reviewed by the Court in camera
would be filed under seal so there would be a com plete record of the docum ents that are the subject of
the Court’s ruling.
Case No: 1:11-cv-196-SPM-GRJ

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production by the Defendant of ESI, which is focused primarily upon identifying emails
from a list of Defendant’s management level employees, who Plaintiff has identified as
having involvement with the issues relevant to this case.
Defendant has submitted the affidavit of John Christly, AvMed’s Director of
Information Security and Technology, (Doc. 43, Ex. “C”), which details the process of
restoring, retrieving and then searching for emails responsive to Plaintiff’s request for
production. The process involves restoration of 56 back-up tapes from Defendant’s
Miami email server and restoration of 50 back-up tapes from Defendant’s Gainesville
email server. The process requires that the Defendant obtain the back-up tapes from a
third party storage company and then restore each tape to a data file so that the
information is in a format that is retrievable. The data files must then be imported to a
standby email server, secured, compressed and saved and then transmitted to the
vendor conducting the search of the data through software designed to identify relevant
emails and documents. According to Defendant, it has completed this process for 11 of
the 106 back-up tapes. Defendant represents that this process is both time consuming
and costly.
Plaintiff first became aware of the time and cost involved in the retrieval of ESI
when the Christly affidavit was filed. The Plaintiff, therefore, advised the Court that he
wanted to conduct the deposition of Mr. Christly before he could fully address issues
relating to the ESI search, the putative cost of conducting the retrieval of ESI or any
issues of cost shifting under the framework identified in Zubulake v. UBS Warburg LLC,
216 F.R.D. 280 (S.D.N.Y. 2003). However, unless or until the Court is presented with a
request for cost shifting on a prospective basis, the Court directed – and Plaintiff agreed
– that Defendant may hold in abeyance the process of restoring, retrieving and

Case No: 1:11-cv-196-SPM-GRJ

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searching the back-up tapes. Defendant shall, however, continue with the review and
production of any ESI already retrieved and which is in the process of being reviewed
by Defendant’s counsel for production.
Accordingly, upon due consideration, it is ORDERED:
1.

Plaintiff’s Amended Motion To Compel Production of Documents (Doc.
26) is DENIED without prejudice.

2.

Plaintiff’s Motion To Compel Production of Documents and After
Documents are Produced to Compel Production of Witness to be ReDeposed (Doc. 47) is GRANTED to the extent that Plaintiff is permitted to
depose Ed Hannum as limited by this Order. The deposition shall take
place in Tampa, Florida either to coincide with the scheduled mediation on
April 23, 2012 or no later than April 30, 2012. In all other respects
Plaintiff’s motion is due to be DENIED.

3.

Defendant’s documents identified on its privilege log, bates stamped
AVMED PRIV 00001 to AVMED PRIV 000555, are protected by the
attorney-client privilege and Defendant is not required to produce those
documents to Plaintiff.

4.

The Clerk is instructed to place the file folder containing Defendant’s
documents bates stamped AVMED PRIV 00001 to AVMED PRIV 000555
under seal and to make an appropriate notation on the docket.

5.

Defendant shall hold the restoration, retrieval and search of ESI from its
back-up tapes in abeyance pending further Court order or agreement
between the parties.

6.

The parties’ respective requests for attorney’s fees and expenses in filing
the motions to compel and in responding to the motions are DENIED.
DONE AND ORDERED this 12th day of April, 2012.

s/Gary R. Jones
GARY R. JONES
United States Magistrate Judge

Case No: 1:11-cv-196-SPM-GRJ