Accusoft Corporation v. Quest Diagnostics et al

Filing 308

Magistrate Judge David H. Hennessy: ORDER entered re: 307 Motion Hearing held on December 16, 2013, Status Conference regarding pending discovery issues set for 1/10/2014 10:00 AM in Courtroom 1 - Worcester before Magistrate Judge David H. Hennessy.(Belpedio, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ACCUSOFT CORPORATION,
Plaintiff,
v.
QUEST DIAGNOSTICS, INC.,
And MEDPLUS, INC.,
Defendants.
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CIVIL ACTION
NO. 12-cv-40007-TSH

ORDER
December 17, 2013
This Order follows a December 16, 2013 hearing attended by counsel for both parties. At the
hearing, the Court attempted to narrow the discovery disputes between the parties that are the
subjects of Plaintiff’s Motion to Compel (Document #266), Defendants’ Response to Order on
Use of ImageGear (Document #304), Defendants’ Discovery Status Report (Document #305),
and Plaintiff’s Discovery Status Report (Document #306). Keeping in mind the goal of
concluding fact and expert discovery as thoroughly, efficiently and expeditiously as possible, the
Court and counsel for the parties at the hearing addressed the substance of the discovery
disputes. The following orders were crafted at the hearing and are repeated below to ensure that
all participants understand their obligations going forward.
1. With respect to eMaxx, Accusoft seeks information on damages based on Quest
Diagnostics’ laboratory business (see, e.g., Document #306, par. 1). Without regard to
the relevancy of such information, and in an attempt to avoid the anticipated motion to
compel such information, the Court orders counsel for Accusoft to confer with their
damages expert witness to determine whether the expert is able to form his/her opinion
based on Quest Diagnostics’ public filings with the Securities and Exchange
Commission. Counsel for Accusoft shall report back to the Court on or before January 3,
2014, regarding whether the expert can opine on damages based on such public filings.
2. Accusoft has alleged Defendants distributed ImageGear through OptiMaxx without
license. To ascertain the facts and circumstances about the distribution of OptiMaxx,
Accusoft served, in 2012, nineteen (19) subpoenas to customers of Quest Diagnostics.
The Court quashed the subpoenas without prejudice, finding Defendants could directly
provide the information without involving their customers. (Document #53). At the
hearing, Accusoft represented that Defendants have produced to Accusoft the information
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it needs with respect to 75% of those customers. Accusoft is entitled to information
regarding the other 25%. To that end, on or before December 20, 2013, Accusoft is
ordered to identify to Defendants the identities of the 75% of Quest customers about
whom they have already received information. Using that information, Defendants shall
identify the other 25% to Accusoft, on or before January 3, 2014. To the extent
Defendants contend they have produced documents that obviate the need to subpoena the
newly identified customers, Defendants shall direct Accusoft to specific bates-numbered
documents. Otherwise, Accusoft will be entitled to subpoena those customers.
3. With respect to eMaxx, Accusoft seeks documents that will enable Accusoft to identify
the extent of use and the number of eMaxx customers who have accessed ChartMaxx for
print functions. At the hearing, Defendants’ counsel represented he could provide
Accusoft with a bates-range of such documents. Defendants shall therefore provide the
bates-range of responsive documents on or before January 3, 2014.
4. With respect to ChartMaxx Epic Viewer, Defendants are ordered to produce the
identification of the three customers referenced in their December 6, 2013 Response
(Document #304, p. 2). On or before January 3, 2014, Defendants shall also produce
documents, or direct Accusoft to specific bates-numbered documents that they have
already produced, that show use and revenue associated with the development and release
of ChartMaxx Epic Viewer.
5. On September 26, 2013, Accusoft filed its motion to compel Defendants to answer or
supplement almost 40 answers to interrogatories or responses to requests for documents
(Document #266). Having had the benefit of several months to collect and review new
discovery since that time, including having conducted depositions, receiving additional
documents, reviewing Defendants’ Documents #304 and #305, and attending the
December 16 hearing, Accusoft is now directed to identify those matters that it continues
to press as absolutely necessary in order for it to conclude its discovery. Making
reference to its Motion to Compel (Document #266), Accusoft is ordered to specifically
identify any request, including only those subparts of each request, that it contends
require this Court’s intervention in compelling Defendants to answer. In other words, if
Accusoft still seeks profits and revenues pertaining to OptiMaxx from 2001 to the present
(see, e.g., Document #266, p. 8), Accusoft is to identify the specific years for which it
continues to need such information. The Court anticipates Accusoft will file a very short
document that identifies the request by number and specifies the specific subparts that it
contends are still not answered. In doing so, Accusoft should assume Defendants will
have complied with the other parts of this Order, without prejudice to renew the motion
to compel regarding those matters if Defendants fail to comply with this Order. Neither
party is to file any argument regarding same because the Court has already received
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extensive briefing by Accusoft in support of its Motion to Compel, and has likewise
received extensive argument in opposition from Defendants (Document #276), in
addition to the information provided by the parties at the hearing. Accusoft should file
and serve this document on or before December 20, 2013.

In light of the foregoing, and pursuant to Judge Hillman’s referral of all pretrial matters to
me, all deadlines in the current Scheduling Order (Docket #296) will continue to be stayed until
further order of the Court. The parties are next scheduled to appear before me at a status
conference regarding pending discovery issues on January 10, 2014 at 10:00 a.m., Courtroom 1,
595 Main Street, Worcester, Massachusetts.
So ordered,

/s/ David H. Hennessy
David H. Hennessy
United States Magistrate Judge

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