Pipeline Productions, Inc. v. The Madison Companies, LLC, et al
Filing
282
ORDER granting 213 Motion to Compel; denying 214 Motion to Compel. See order for details. Signed by Magistrate Judge K. Gary Sebelius on 10/4/2018. (wh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PIPELINE PRODUCTIONS, INC.,
BACKWOOD ENTERPRISES, LLC,
OK PRODUCTIONS, INC., and
BRETT MOSIMAN,
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Plaintiffs,
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v.
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THE MADISON COMPANIES, LLC,
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and HORSEPOWER ENTERTAINMENT, )
LLC,
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Defendants.
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Case No. 15-4890-KHV
ORDER
This matter comes before the court upon plaintiffs’ Motion to Compel Bryan Gordon’s
Texts, Cell Data and Personal Emails (ECF No. 214) and defendants’ Motion to Compel
Production of Plaintiff Brett Mosiman’s Telephone Records (ECF No. 213). For the following
reasons, plaintiffs’ motion is denied and defendants’ motion is granted.
PLAINTIFFS’ MOTION TO COMPEL BRYAN GORDON’S TEXTS, CELL DATA AND
PERSONAL EMAILS
I.
In their motion, plaintiffs seek an order compelling defendants to produce responsive texts,
cell phone data and personal emails of Bryan Gordon, CEO of The Madison Companies, LLC.
Plaintiffs’ basis for this motion is statements made by Gordon during his deposition where he
indicated that it was his practice not to retain documents or texts on his phones and to delete them
as soon as he is finished with a conversation. Plaintiffs ask that defendants take immediate steps
to recover Gordon’s relevant texts and cell phone data. Plaintiffs suggest that if Gordon failed to
preserve these documents after he knew or should have known there were potential legal
proceedings between the parties, then they may seek sanctions for spoiliation.
Defendants have initially responded that there was no improper deletion of documents.
They contend that no relevant materials have been deleted or discarded since litigation was
anticipated. Defendants also argue that there is nothing to compel because “[w]hat has been
deleted has been deleted.” Finally, they assert that plaintiffs cannot establish that any document
relevant to their claims ever existed but are no longer available. Defendants note that Gordon
rarely uses his personal email account for business. But, to the extent he has done so, plaintiffs
already have in their possession any text or email that was sent to them from Gordon’s phone or
personal email address and defendants’ searches of their records has picked up the rare emails
related to the claims in this case that went to or from Gordon’s personal email address because
those emails either came from or were sent to defendants’ employees at their corporate email
addresses.
II.
Plaintiffs allege the existence of an oral contract in which defendants agreed to purchase
51% of plaintiffs’ music festival, Thunder on the Mountain. Plaintiffs allege that the agreement
was proposed by plaintiff Brett Mosiman in an email dated November 4, 2014, and accepted by
Gordon in telephone calls that occurred between November 4-6, 2014. On April 7, 2015, a lawyer
for plaintiffs expressly reserved their legal and equitable rights to enforce the partnership/joint
venture. On April 15, 2015, defendants initiated an action against the plaintiffs in Delaware.
Plaintiffs filed this action on May 21, 2015.
III.
In his deposition, Gordon acknowledged that he had two cell phones. He stated that he
rarely texts for business matters. He said that his practice is not to retain any documents or texts
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on his phone. He deletes them as soon as he is finished with a conversation. Gordon suggested in
his deposition that he never stopped or changed his practice even after litigation occurred between
the parties. He also said he had not reviewed his cell phone texts to determine if there are any
relevant documents.
In an affidavit filed with the defendants’ response to plaintiffs’ motion, Gordon stated that
he had two cell phones that he used for business matters. He also has a personal email address
separate from his work email address. Gordon said that all texts prior to April 7, 2015 had been
deleted pursuant to his normal practice. He further stated that after April 7, 2015, he never deleted
any texts “of any significance to this lawsuit” from either cell phone. He further indicated that he
did not believe that he had any substantive text communications regarding Pipeline, Thunder or
this lawsuit. He suggested that, if he had seen a text after April 7, 2015 that appeared to have any
significance to this lawsuit from either cell phone, he would have preserved it. He stated that he
does not have the actual phones he used in 2014 and the first half of 2015. He also confirmed that
Madison does not have the old phones. Finally, he said that he has a personal email address, but
he does not often receive and send business-related emails from his personal email account. He
did note that emails related to Pipeline, Thunder or this lawsuit in his personal email account fall
into three categories: (1) on occasion he has forwarded emails from his business email account to
his personal email and, on one occasion, he forwarded those emails to a Madison employee; (2)
on rare occasions, he copied on his personal email account the emails he sent from his business
email account to another email address; and (3) on rare occasions, a Madison employee would
send an email to his personal email account or copy his personal email address in an email. Gordon
asserts that all of the emails in these three categories would have been retained in his business
email account or the business email account of the Madison employee sending or receiving the
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email.
He said that he did not recall deleting any emails that had anything to do with Pipeline,
Thunder or this lawsuit from his personal email account at any time before or after April 7, 2015.
He noted that since his deposition, he had reviewed his personal email account and confirmed that,
other than the emails falling into any of the three above-mentioned categories, it contained no
emails that pertain in any way to Pipeline, Thunder or this lawsuit.
IV.
In their motion, plaintiffs acknowledged that Gordon’s cell phone texts and data may not
be retrievable. Nevertheless, they seek an answer concerning the efforts made by defendants to
retrieve this information.
A statement of unavailability of additional responsive documents is not a proper objection
and is rather a statement of fact.1 “Such a statement of fact, like any other given in the course of
litigation, requires more than such a conclusory assertion of the existence of such a fact. It also
requires evidence tending to prove or disprove the existence of such fact.”2
The court finds that defendants have fulfilled that obligation here. Defendants have
provided an answer to plaintiffs’ requests concerning the cell phones. In Gordon’s affidavit, he
states that neither he nor Madison has the cell phones he used in 2014 and the first half of 2015.
Without access to the phones, defendants cannot be compelled to obtain information from them.
The court simply cannot order defendants to produce information that is no longer available.
Moreover, Gordon stated in his deposition that, pursuant to his normal practice, all texts prior to
April 7, 2015, were deleted. And, he indicated that he never deleted any texts from his cell phone
of any significance to this lawsuit after April 7, 2015. Gordon’s counsel has confirmed with
1
Cory v. Aztec Steel Building, Inc., 225 F.R.D. 667, 671 (D.Kan. 2005); Oxford House, Inc. v. City of Topeka, No.
06-4004-RDR, 2007 WL 1246200, at * 3 (Apr. 27, 2007).
2 Oxford House, 2017 WL 1246200, at * 3.
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Gordon’s cell phone carrier that once texts are deleted, they cannot be recovered. In addition,
plaintiffs have failed to demonstrate that there are any “missing” cell phone records. Mere
skepticism that an opposing party has not produced all relevant information is not sufficient to
warrant drastic electronic discovery measures.3 A mere desire to check that the opposition has
been forthright in its discovery responses is not a good enough reason for a court order compelling
computer forensic examination.4 Under these circumstances, the court cannot compel defendants
to produce the information requested by plaintiffs.
Concerning his personal email account, Gordon has explained that he does not usually
receive any business emails on his personal email account. To the extent that such emails appeared
on his personal email account, he has explained how that happened. All of those emails, however,
would have appeared on his business email account. Finally, he has stated that he has reviewed
his personal email account, and with the exceptions he has noted, no other emails related to
Pipeline, Thunder or this lawsuit are contained on it. Again, plaintiffs have failed to show that
there are “missing” emails. The court fails to find any reason to compel defendants to take further
steps. Plaintiffs’ motion to compel is denied.
With this decision, the court does not reach plaintiffs’ claim of spoiliation. Such a claim
may be pursued by plaintiffs at a later time, if they believe it is appropriate.
DEFENDANTS’ MOTION TO COMPEL PRODUCTION OF PLAINTIFF BRETT
MOSIMAN’S TELEPHONE RECORDS
In their motion, defendants seek an order compelling plaintiff Brett Mosiman to produce
his telephone records. Specifically, they request that Mosiman be ordered to produce records from
his cell phone carrier, actual screenshots of text messages, and audio files of his voicemails. They
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McCurdy Group, LLC v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 831 (10th Cir. 2001).
Nola Spice Designs, LLC v. Haydel Enters., Inc., No. 12-2515, 2013 WL 3974535, * 2 (E.D.La. Aug. 2, 2013).
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note that plaintiffs have produced more than 39,000 pages of documents, but they have not found
any records of incoming and outgoing voice calls in that production. They acknowledge that
plaintiffs have produced summaries and re-creations of cell phone records, listing messages and
voicemails on Excel spreadsheets, but they have not produced the records noted previously.
Plaintiffs have responded that (1) the parties did not sufficiently meet and confer on this
issue; (2) defendants failed to follow the court’s ESI guidelines; and (3) they provided all the
responsive data from Mosiman’s cell phone. Initially, they suggest the parties did not adequately
meet and confer because defendants refused to allow the parties’ IT personnel to discuss their
concerns. Next, they assert that defendants failed to follow the court’s ESI guidelines because
they ignored plaintiffs’ request to have the parties’ IT personnel discuss the issue before filing this
motion. Finally, they contend they have provided all data from Mosiman’s cell phone, but not in
a format acceptable to defendants.
The court is not persuaded by any of the arguments raised by plaintiffs. The record shows
that the parties did sufficiently meet and confer on this issue. The court also finds no violation of
the court’s ESI guidelines. The court sees no need for any involvement by IT personnel. This is
not a formatting issue as suggested by plaintiffs. Rather, defendants have requested original cell
phone billing records. This request, of course, does not require any involvement by IT personnel
since these records can be obtained from his phone carrier. The other requests for screenshots of
the text messages and the audio files of voicemails also do not appear to require the involvement
of IT personnel. Plaintiffs have offered no explanation why these cannot be produced.
Thus, the court grants defendants’ motion. Plaintiffs shall produce to defendants the
following matters from Mosiman’s cell phone during the period from May 2014 through April
2015: (1) original records from his cell phone carrier, Sprint (with personal telephone calls and
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any telephone calls that did not pertain to the Thunder on the Mountain music festival redacted),
(2) screenshots of text messages; and (3) audio files of voicemails. Production of all records shall
be made on or before October 19, 2018.
IT IS THEREFORE ORDERED that plaintiffs’ Motion to Compel Bryan Gordon’s
Texts, Cell Data and Personal Emails (ECF No. 214) be denied.
IT IS FURTHER ORDERED that defendants’ Motion to Compel Production of Plaintiff
Brett Mosiman’s Telephone Records (ECF No. 213) be granted.
IT IS SO ORDERED.
Dated this 4th day of October, 2018, at Topeka, Kansas.
s/ K. Gary Sebelius
K. Gary Sebelius
U.S. Magistrate Judge
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