Fyfe Co., LLC et al v. Structural Group, Inc. et al

Filing 98

MEMORANDUM. Signed by Magistrate Judge Susan K. Gauvey on 2/10/14. (mps, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
FYFE CO. LLC, et al.

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Plaintiffs

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V.

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CIVIL NO. 13-00176-CCB
*

STRUCTURAL GROUP, INC.
et al.

*

Defendant.

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MEMORANDUM
Currently pending before the Court is Plaintiffs’ motion to
compel

designation

of

Dr.

Tarek

Alkhradji

custodian under expedited discovery plan.
Court

has

considered

the

motion,

as

additional

(ECF No. 80.)

Defendants’

response

The
in

opposition (ECF No. 85), and Plaintiffs’ reply thereto (ECF No.
88).

For the reasons discussed herein, Plaintiffs’ motion will

be GRANTED.

I.

Background
On

Discovery

March
Plan

12,

2013,

(“EDP”)

this
to

Court

govern

Plaintiffs and Defendants. (ECF No. 40.)

entered
all

an

discovery

Expedited
between

This Court’s March 12,

2013, order left the terms of the EDP to those terms agreed upon
1

by the parties in their January 25, 2013, and March 6, 2013,
correspondence.

(Id.)

The January 25, 2013, correspondence

identified ten of Defendants’ employees1 as “custodians,”2 whose
personal computers, work computers, external storage devices,
cell phones, tablets, and similar storage devices would have a
forensic image taken by a Third Party Analyst.

(Defs.’ Opp’n,

Ex. C, January 25, 2013, Correspondence 11-12, ECF No. 85-1.)
The March 6, 2013, correspondence limited expedited discovery to
six of the ten employees3 originally designated as “custodians”
and

provided

expedited

that

discovery

“Plaintiffs
from

reserve

additional

the

right

Custodians,

to

request

should

the

discovery reveal that different individuals possess information
or documents relevant to this action.”

(Defs.’ Opp’n, Ex. D,

March 6, 2013, Correspondence 23-24, ECF No. 85-1.)

On May 2,

2013, this Court entered a Stipulated Protective Order limiting
the review, copying, dissemination and filing of confidential
and/or proprietary documents and information to be produced by

1

Jason Alexander; Mark Geraghty; Anna Pridmore; Shaun Leoding; Peter Emmons;
Jay Thomas; Brent Anderson; Michael Biesiada; Angela Mease; Cathy Ullery.
(Defs.’ Opp’n, Ex. C, January 25, 2013, Correspondence 12.)
2
In addition to the ten named parties, the term “custodian” includes “any
person employed by Structural Group, Inc. (“SGI”): (1) who is or was the
direct supervisor of an Individual Defendant and/or (2) who has had
responsibility for and/or who has provided pricing quotes and/or other data
or has confirmed orders from customers of SGI for projects involving the use
or installation of Fyfe Co, LLC product purchased from Fyfe Co. since January
1, 2012.” (Defs.’ Opp’n, Ex. C, January 25, 2013, Correspondence 12.)
3
Jason Alexander; Mark Geraghty; Anna Pridmore; Shaun Leoding; Peter Emmons;
Jay Thomas. (Defs.’ Opp’n, Ex. D, March 6, 2013, Correspondence 23.)

2

either party, and providing for attorney’s eyes only review of
designated documents.

(ECF No. 52.)

On October 4, 2013, Plaintiffs filed the present motion
seeking that this Court compel the designation of Dr. Tarek
Alkhrdaji, Defendants’ Chief Engineer, as additional custodian
under the EDP.

(Pls.’ Mot. Compel 1.)

Although Plaintiffs seek

to designate Dr. Alkhradji as custodian under the EDP, they only
seek

forensic

imaging

of

Dr.

Alkhradji’s

Structural-issued

(work) computer(s), not his personal or external devices.
at

2.)

custodian

Defendants

dispute

under

EDP,

the

Dr.

Alkhradji,

arguing

forensic

(Id.

designation
imaging

as

of

Dr.

Alkhradji’s computer would only be justified under extraordinary
circumstances, not present here, and that Dr. Alkhradji’s remote
connection

to

the

present

designation

as

additional

lawsuit

custodian

does
under

not
the

warrant
EDP.

his

(Defs.’

Opp’n 3, 14.)

II.

Discussion
Defendants’

“extraordinary”

opposition
discovery

argues

method

of

at

length

forensic

that

imaging

is

warranted with respect to Dr. Alkhradji’s work computer.
at

3-14.)

The

Court,

however,

finds

inapplicable to the present dispute.

this

argument

the
not
(Id.
to

be

The instant motion does

not require the court to decide whether forensic imaging is an

3

appropriate discovery method in this case.

The parties agreed

from the outset to an EDP, including forensic imaging of the
computers and other electronic devices of “custodians.”

The

issue before the Court, therefore, is whether the EDP warrants
forensic imaging of Dr. Alkhradji’s work computer.
The parties’ final EDP identified six named custodians and
reserved to Plaintiffs “the right to request expedited discovery
from

additional

Custodians,

should

the

discovery

reveal

that

different individuals possess information or documents relevant
to

this

action.”

Correspondence

(Defs.’

23-24.)

Opp’n,

The

Ex.

term

D,

March

“custodian”

is

6,

2013,
defined

elsewhere as
any person employed by Structural Group, Inc. (“SGI”):
(1) who is or was the direct supervisor of an
Individual
Defendant
and/or
(2)
who
has
had
responsibility for and/or who has provided pricing
quotes and/or other data or has confirmed orders from
customers of SGI for projects involving the use or
installation of Fyfe Co, LLC product purchased from
Fyfe Co. since January 1, 2012.
(Defs.’

Opp’n,

Accordingly,

Ex.

the

C,

January

foregoing

25,

2013,

provisions

Correspondence

dictate

12.)

whether

Dr.

Alkhradji warrants classification as additional custodian and
whether forensic imaging of Dr. Alkhradji’s work computer should
be compelled.
While Dr. Alkhradji is not a “direct supervisor” of an
Individual

Defendant,

the

Court
4

finds

that

Dr.

Alkhradji

is

sufficiently

connected

classification

as

to

the

present

additional

lawsuit

custodian.

to

Dr.

warrant

Alkhradji,

Defendants’ Chief Engineer, serves on Defendants’ “structural
solutions

leadership

team”

with

three

Individual

Jason Alexander, Mark Geraghty, and Anna Pridmore.

Defendants,
(Pls.’ Mot.

Compel, Ex. 3, Dep. Thomas 202:1-19, June 21, 2013, ECF No. 805.)

Further, Plaintiffs proffer that discovery has revealed

that Defendant Anna Pridmore downloaded Plaintiffs’ documents
onto her Structural Computer, Defendant Mark Geraghty attached a
device

containing

computer,

and

Plaintiffs’

Defendant

documents

Shaun

Loeding

documents on his Structural computer.
88.)

to

his

accessed

Structural
Plaintiffs’

(Pls.’ Reply 2-3, ECF No.

Dr. Alkhradji’s apparent working relationship with several

Individual
Pridmore,

Defendants,
creates

the

including
possibility

access to Plaintiffs’ files.

Mark
that

Geraghty
he

too

may

and
have

Anna
had

Moreover, Plaintiffs discovered

that Dr. Alkhradji used three “Fyfe photographs” in a slideshow
he presented during the ASCE Pipeline 2013 Conference.
Defendants

have

demonstrated

that

the

photos

at

Although
issue

are

available via the internet (Defs.’ Opp’n, Ex B, ECF No. 85-1),
Dr. Alkhradji may have obtained the photographs from one or more
of the Individual Defendants known to have accessed Plaintiffs’
files on their Structural computers.

5

It is notable that Dr.

Alkhradji in his affidavit does not cite his source for their
photos.
Additionally,

it

appears

that

Dr.

Alkhradji’s

responsibilities as Defendants’ Chief Engineer include providing
data to Defendants’ Customers who require use or installation of
Plaintiffs’ products.

Ms. Pridmore testified in her deposition

that

contacted

Dr.

Alkhradji’s

Plaintiffs

in

an

attempt

to

obtain product specifications for a project in which Defendants’
customer

required

Plaintiffs’

Pridmore

90:16—91:5,

August

products.
8,

2013,

(Id.,
ECF

No.

Ex.

6,

Dep.

80-8.)

Dr.

Alkhradji successfully obtained the desired specifications and
later

forwarded

Defendants’

them

customer.

to

Ms.

Pridmore,

(Id.,

Dep.

who

Pridmore

provided

them

101:2-17.)

to

This

testimony indicates that Dr. Alkhradji performs job functions
listed as those performed by a “custodian,” including providing
data to customers for projects involving the use or installation
of Fyfe Co, LLC products purchased from Fyfe Co. since January
1, 2012.

(Defs.’ Opp’n, Ex. C, January 25, 2013, Correspondence

12.).
While

Dr.

Alkhradji

might

not

perfectly

meet

the

alternative definition of “custodian,” his duties as Defendants’
Chief Engineer, his working proximity to Individual Defendants,
and potential access to and use of Plaintiffs’ files, warrant

6

Dr.

Alkhradji’s

classification

as

an

additional

custodian

pursuant to the terms of the EDP.
Having found that Dr. Alkhradji meets the definition of
“custodian,”
reveal[ed]

the
that

question
[Dr.

becomes

Alkhradji]

whether

posses[es]

documents relevant to this action.”
there

is

a

basis,

in

his

the

“discovery

information

or

While admittedly sparse,

relationship

to

the

Individual

Defendants and his several contacts with Individual Defendants
on subjects related to the lawsuit, that he has information or
documents relevant to this lawsuit.
While it is a close case, the Court is swayed to find him
an

additional

custodian,

subject

computer, for a few reasons.

to

forensic

imaging

of

his

First, the burden on him seems

slight, especially in light of Plaintiffs’ willingness to image
his computer outside of business hours.
limited to his business computer.
bear the cost.

Second, the imaging is

Third, the Plaintiffs shall

And, fourth, this is the discovery stage where

relevance is broadly defined.

III.

Conclusion
For

the

foregoing

reasons,

Plaintiffs’

motion

to

compel

designation of Dr. Tarek Alkhradji as additional custodian under
expedited discovery plan shall be GRANTED.
shall issue.

7

A separate order

Date: February 10, 2014

__/S/__
Susan K. Gauvey
United States Magistrate Judge

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