Bailey v. Scoutware LLC et al

Filing 98

OPINION and ORDER Granting In Part and Denying In Part Plaintiff's 93 Motion for Order to Show Cause. Signed by District Judge Nancy G. Edmunds. (Loury, R)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Christopher James Bailey,
Case No. 12-10281
Plaintiff,
Honorable Nancy G. Edmunds
v.
Scoutware, LLC,
Defendant.
/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION FOR SHOW CAUSE [93]
In this Michigan Whistleblower Protection Act and breach of contract case, Plaintiff
Christopher Bailey alleges that Defendant Scoutware terminated him and breached its
contract with him when it found out about a suit Plaintiff filed against his former employer,
Fast Model.1
On July 31, 2013, the Court denied Defendant's motion for summary judgment on
the WPA claim. (Dkt. 83.) The Court found that, viewing the evidence in a light most
favorable to Plaintiff, that he had brought forth evidence to show that Defendant's
termination was, at least in part, based on the Fast Model suit. (Id.)
Throughout the case's progress, Plaintiff and Defendant have disputed the discovery
of several text messages that occurred between a Fast Model employee, Ross Comerford,
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In his Fast Model suit, Plaintiff alleged that his former employer Fast Model violated
the Michigan Sales Representative Commissions Act, Michigan’s procuring cause doctrine
for post-termination commissions, promissory estoppel, breach of contract and quantum
meruit, tortious interference against Fast Model and Ross Comerford, an employee, and
intentional infliction of emotional distress against Fast Model and Ross Comerford. (Dkt.
12, Pl.’s Resp. to Defs.’ Mot. to Dismiss, Ex. 3.)

and Kate Cronin, Plaintiff's co-worker and mentor at Defendant. These text messages
occurred a day or two after Plaintiff's Fast Model deposition, in which he turned over his
Scoutware contract and Fast Model first learned that Defendant was then employing
Plaintiff. Defendant has not produced the text messages, stating that it cannot recover the
text messages. During the hearing on the motion for summary judgment, on July 24, 2013,
Defendant revealed that it had an expert examine Cronin's phone and that the expert could
not recover the text messages or any voice messages on Cronin's phone.
I.

Introduction
Over four months later, on December 14, 2013, Plaintiff filed this motion for show

cause. (Dkt. 93.) Plaintiff argues that (1) Defendant violated the Court-ordered consent
order, (2) Defendant gave false and misleading discovery responses that Cronin's phone
was in the possession of a third party, (3) the Court should bar Defendant from arguing that
it did not know of Plaintiff's protected activity or the Court should force Defendant to turn
over the evidence that goes to the defense and/or liability as a result of its concealment,
and (4) the Court should hold Defendant's counsel in contempt and order them to pay
Plaintiff's attorneys's fees for filing this motion. (Pl.'s Mot. at 3.)
Plaintiff suggests that the Court: (1) bar Defendant from arguing that it did not know
of Plaintiff's lawsuit against Fast Model or that it did not know the specifics of that lawsuit;
(2) give the jury an instruction that Defendant withheld the alleged forensic examination and
gave false discovery responses because the information was damaging to their defense;

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and (3) force Defendant to turn over phones and information relating to expert analysis.2
(Pl.'s Mot. at 11-13.)
Plaintiff also suggests that the Court order Defendant to pay Plaintiff's attorneys's fees
for this motion and any other sanctions the Court finds proper to deter actions such as
Defendant's. (Pl.'s Mot. at 13-14.)
II.

Analysis
The Court held a hearing on this matter on March 19, 2014. While the Court denies

the majority of the relief Plaintiff requests, the Court finds that Plaintiff is entitled to examine
Kate Cronin's past and present phone.
A. The parties' arguments
Plaintiff states that Defendant violated the discovery order that the magistrate judge
entered on February 11, 2013. (Pl.'s Mot. at 5.)

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Rule 37(b) governs sanctions for a party that disobeys or violates a discovery order.
Fed.R.Civ.P. 37(b)(2)(A). The Rule contemplates the following:
(i)
directing that the matters embraced in the order or other designated
facts be taken as established for purposes of the actions, as the
prevailing party claims;
(ii)
prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated
matters in evidence;
...
(iv)
staying further proceedings until the order is obeyed;
...
(vii) rendering a default judgment against the disobedient party[.]
Rule 37(c) governs the failure to disclose or supplement responses and provides for similar
sanctions. Fed.R.Civ.P. 37(c). Rule 37(d), in relevant part, governs the failure to respond
to a request for inspection, and also provides for the sanctions as set for in Rule 37(c).
Fed.R.Civ.P. 37(d)
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That stipulated discovery order provided, in part, that Defendant would produce the
text messages between Cronin and Comerford that Plaintiff identified in its requests for
production of documents. (Pl.'s Mot., Ex. 1.) The order also addressed the subpoena to
Cronin and required Defendant to comply with the subpoena seeking the text messages
from Cronin's phone. (Id., Ex. 2.) On February 15, 2013, Defendant submitted an "affidavit
of completeness." (Pl.'s Mot., Ex. 3.) In the affidavit, Defendant attests that it has complied
with the February 11, 2013 discovery order and has no more documents that are
responsive to the order that Plaintiff is entitled to. (Id.)
Plaintiff also objects to Defendant's response to a request to produce. (Pl.'s Mot. at
6-7.) Plaintiff requested that Defendant "[p]roduce all voicemails left by Ross Comerford
to Kate Cronin from October 18, 2011 through the present day." (Pl.'s Mot., Ex. 4.)
Defendant responded,
Scoutware objects to this request because it seeks information and/or
documents not in the possession, custody, or control of Scoutware, but int eh
possession, custody or control of third parties. Subject to, and without waiver
of its objections, Scoutware states that it has no responsive document or
items within its possession, custody or control.
(Id.)
Plaintiff objects to Defendant's characterizing Cronin as a "third-party." (Pl.'s Mot. at
7.) Plaintiff states that she "cannot be considered a third party if [Defendant] [has] the
authority to ensure she complies with a subpoena and turn over every other piece of
evidence that was requested from her." (Id.)
Plaintiff emphasizes that the five missing text messages and two voice messages are
the only recorded pieces of evidence pertaining to conversations between Comerford and
Cronin during Plaintiff's employment with Defendant. (Pl.'s Mot. at 7.) Plaintiff postures

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that Defendant was able to turn over dozens of other text messages between Cronin and
Comerford, but that Defendant was not able to produce the messages in question. (Id.)
Plaintiff suggests that the reason that Defendant did not produce and cannot produce them
is that the message were damaging to the case "and [Defendant has] either destroyed
them or knowingly refused to turn them over." (Id.)
Plaintiff further objects to the fact that Cronin still has the phone in her possession.
(Pl.'s Mot. at 7-8.) Plaintiff argues that there is no reason that she should not be able to
turn over the phone so that an expert can retrieve the messages. (Id.)
Plaintiff argues that Defendant's failure to turn over the expert's forensic report
violates the Court's order. (Pl.'s Mot. at 8.) Plaintiff maintains that the fact that Defendant
had possession of Cronin's phone at one time despite stating that it could not produce the
phone because it was in a third party's possession. (Id.) Plaintiff questions when the
expert examined the phone and why the phone was not turned over to Plaintiff. (Id.)
Plaintiff further argues that the phone possibly had evidence on it since Plaintiff had
been seeking it since "day one of this case." (Pl.'s Mot. at 8.) Plaintiff maintains that the
expert evaluation "would obviously contain information such as when the information was
lost from the phone, whether it was intentionally deleted, whether the phone was altered,
and other relevant evidence. (Id.) Plaintiff then maintains that, if the evidence was
tampered with, then the jury would be able to hear that fact and draw conclusions from it.
(Id.) Plaintiff states that Defendant has no right to turn over relevant evidence just because
Defendant does not plan to call the expert at trial. (Id.) Plaintiff additionally states that
Defendant's expert is the only person who has examined Cronin's phone and only person

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who would have information as to whether the messages were still on the phone, and when
the phone was supposedly lost. (Id. at 8-9.)
Plaintiff suggests that it has the right to have his own expert evaluate the evidence.
(Pl.'s Resp. at 9.)
Defendant responds that it did not violate the discovery order. (Def.'s Resp. at 2.)
It argues that it has produced "every responsive text message it was able to retrieve from
[] Cronin's phone." (Id.) Defendant represents that Cronin and Defendant's counsel
searched through Cronin's phone and was not able to find the messages that Plaintiff
sought. (Id. at 3.) Defendant also represents that it "took the additional measure" of hiring
a consulting expert to examine the phone to see if any of the text messages that Plaintiff
sought could be retrieved. (Id.) Defendant states that even its consultant could not retrieve
the messages. (Id.) Defendant has attached the declaration of Josh Fazio, the consulting
expert who reviewed Cronin's phone. (Id. at 4, Ex. B.) The consulting expert also stated
that "[t]here is no way to tell from the phone whether any such messages ever existed or,
if so, what happened to them." (Id.)
Defendant also argues that the Court should deny Plaintiff's motion for show cause
because the motion is untimely. (Def.'s Resp. at 7.) Defendant states that Plaintiff filed this
motion nine months after the end of discovery; seven months after the Court's order
denying Plaintiff's request to extend discovery, and more than four months after the Court's
ruling on summary judgment. (Id.) Defendant stresses that the motion is also untimely
because it has come three-and-a-half months after Defendant reached out to Plaintiff and
attempted to resolve the phone issue. (Id.)

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Defendant further argues that the Court should deny the motion because Plaintiff
failed to seek concurrence in accordance with Eastern District of Michigan Local Rule
7.1(a). (Def.'s Resp. at 8.)
Defendant asks the Court to order Plaintiff to pay Defendant's costs in responding to
the motion. (Def.'s Resp. at 10.)
B. The Court grants in part and denies in part Plaintiff's motion, but there is no
basis from which to hold Defendant in contempt of Court or award sanctions

The Court finds no basis from which to find that it should hold Defendant in contempt
of court or that Defendant violated the discovery order. The Court does find, though, that
Plaintiff is entitled to have his expert review Kate Cronin's current and old cell phone.
"To hold a litigant in contempt, the movant must produce clear and convincing
evidence to show a violation of a definite and specific order of the court requiring him to
perform or refrain from performing a particular act or acts with knowledge of the court's
order." Satyam Computer Servs., Ltd., Ltd. v. Venture Global Eng'g, LLC, 323 F.App'x 421,
433 (6th Cir. 2009) (citations omitted). "Once the movant establishes his prima facie case,
the burden shifts to the contemnor who may defend by coming forward with evidence
showing that he is presently unable to comply with the court's order." Id. (citation omitted,
emphasis in original.).
There is no clear and convincing evidence that Defendant acted improperly. To the
contrary, the Court finds that Defendant acted to accommodate Plaintiff's discovery
request.
After Plaintiff filed his motion to show cause, Defendant reached out to Plaintiff to
resolve the issues Plaintiff raised in his motion.
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On January 10, 2014, Defendant

responded to an email Plaintiff sent. (Def.'s Resp., Ex. C.) In the letter, Defendant
proposed a means to resolve their dispute over Cronin's phone and the alleged missing
texts. (Id.)
Defendant stated that it was addressing Plaintiff's two concerns: (1) Plaintiff's desire
to obtain the information concerning Defendant's consulting expert retained to examine
Cronin's cell phone, and (2) Plaintiff's desire to have his own expert examine Cronin's cell
phone. (Def.'s Resp., Ex. C.)
Addressing Plaintiff's first concern, Defendant represented that the individual that it
retained was a consulting expert and it never intended the expert to testify at trial. (Def.'s
Resp., Ex. C.) Defendant then informed Plaintiff, because it did not intend on calling the
expert at trial, that Plaintiff was not entitled to the information that he sought. (Id.)
Defendant then offered Plaintiff some of the information he requested. (Def.'s Resp.,
Ex. C.) Defendant stated that it retained a forensic investigator who was trained to recover
electronically stored information from cell phones. (Id.) Defendant explained that the
expert looked for texts or Short Message Service (SMS) messages associated with Ross
Comerford that were sent and/or received at any time prior to December 5, 2011. (Id.)
Defendant maintained that the "forensics examination uncovered no such messages and
the investigator uncovered no such messages and the investigator advised [Defendant] that
there was no way to tell whether such messages ever existed or if so, what happened to
them." (Id.)
Defendant urged to Plaintiff that it took the "extraordinary step of retaining an expert
to see if it was somehow possible to recover those text messages." (Def.'s Resp., Ex. C.)
Defendant offered to allow Plaintiff to review the forensic report, so long as Plaintiff
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permitted Defendant to continue to designate the expert as a non-testifying consulting
expert. (Id.) And Defendant requested that Plaintiff not view the offer as a waiver of
Defendant's position that the consultant was a non-testifying expert.
Defendant then addressed Plaintiff's request to examine Cronin's phone. (Def.'s
Resp., Ex. C.) Defendant stated that Plaintiff's motion to show cause solely addressed the
missing texts and two voicemails. (Id.) Defendant represented that it did not know which
two voicemails that Plaintiff was referencing. (Id.)
Defendant then proposed a way to settle their dispute over Cronin's phone. (Def.'s
Resp., Ex. C) Defendant offered the following:
•

to ship the phone directly to Peter Morgen, an expert, for Morgen's examination
of the phone;

•

limits on Morgen's search of the phone--that Morgen would not examine, look at,
copy, download, transfer, or save in any manner any text message or
communication that could be classified as attorney-client privilege;

•

limits on the dates of Morgen's search, between June 1, 2011, through the time
Cronin stopped using the phone, possibly around February 5, 2012; and

•

limits on the topics that Plaintiff's expert could search about, specifically, the three
topics Plaintiff requested in his December 26, 2013 email.

(Id.) Defendant then suggested a procedure for returning the phone and information. (Id.)
Defendant suggested that, once Morgen finishes examining the phone:
•

he is to ship the phone back to Defendant, along with a copy of all of the
documents he gathered from Cronin's phone;

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•

he is not to send any documents to Plaintiff until Defendant has cleared the
documents, although the expert is able to keep copies of the documents and make
a log of the documents that he shared with Defendant;

•

Defendant will then prepare a log identifying all the dates and times of any text
message and the originating phone number;

•

in addition to the log, Defendant stated that it would then review the documents
for privileged material and then would search the documents for materials relevant
to Plaintiff's request;

•

Defendant stated that it would produce the material within seven days;

•

Defendant provided for any disputes of withholding documents by stating that the
parties could confer with Plaintiff's expert if there were any disputes about the
documents; and

•

Defendant provided for an exception--if Plaintiff's expert found any of the five
missing text messages, or any of the two missing voice mail messages allegedly
left by Comerford, Plaintiff's expert may immediately forward those messages to
Plaintiff so long as he also forwards those messages to Defendant.

(Id.)
On January 21, 2012, Plaintiff's counsel responded to Defendant's offer. Plaintiff's
counsel stated,
I received your letter and that is no proposal. Either comply with my terms
or we let the judge decide. We will consent to no motion for reconsideration.
(Def.'s Resp., Ex. D.)

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Defendant responded to this email. (Def.'s Resp., Ex. D.) Defendant clarified its
offer, and stated that it did not condition its offer on Plaintiff's acceptance or rejection of any
motion for reconsideration. (Id.) Defendant then reiterated the main points of its offer. (Id.)

The Court does not understand why Plaintiff objected to the offer, at least as a starting
off point. The offer allowed Plaintiff to attempt to get the information he wanted--the
missing texts, by his own means. The Court acknowledges the intrusion into Cronin's life
that the analysis of her phone would cause. Defendant, with its offer, appears to take into
account that intrusion. The Court finds that Plaintiff acted unreasonably in rejecting this
offer in the manner in which he rejected it.
Plaintiff argues that the Federal Rules of Civil Procedure required Defendant to
disclose that it had an expert examine the phone.3 Defendant counters that it did not have
to disclose the expert.
Rule 26(b)(4)(D) governs disclosure of an expert in anticipation trial, whom a party
does not plan to call as a witness. The Rule provides:
Ordinarily, a party may not, by interrogatories or deposition, discover facts
known or opinions held by an expert who has been retained or specially
employed by another party in anticipation of litigation or to prepare for trial
and who is not expected to be called as a witness at trial. But a party may
do so only: . . . (ii) on showing exceptional circumstances under which it is
impracticable for the party to obtain facts or opinions on the same subject by
other means.

3

Rule 26(a)(1)(A) requires parties to disclose the name and other information of those
who are likely to have discoverable information, along with the subjects of that information-"that the disclosing party may use to support its claims or defenses[.]" Fed.R.Civ.P.
26(a)(1)(A)(i). Rule 26(a)(2): "In addition to the disclosure required by Rule 26(a)(1), a party
must disclose to the other parties the identity of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702, 703, or 705."
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Fed.R.Civ.P. 26(b)(4)(D). This section governs Plaintiff's request for the information from
Defendant's expert.
The Court does note, though, that Plaintiff requested and has requested the ability to
have an expert examine Cronin's cell phone for the text messages and the voice
messages. The Court finds that, if Defendant had the cell phone in its possession and was
able to examine it with an expert, that Plaintiff also should have the ability to examine the
phone. The Court recognizes the possible significance of those messages.
The Court finds the following solution equitable: The Court orders that, within 21 days
of this order, Defendant is to produce Cronin's current and old cell phone to Plaintiff's
expert. Plaintiff's expert is to follow the guidelines as Defendant set forth in its offer to
Plaintiff, except for one alteration. Plaintiff's expert may immediately forward any of the
subject text or voice messages to Plaintiff and Defendant, but the expert may also forward
immediately any information, if available, when the texts or voice messages were deleted.
The Court orders the parties to examine the phones as quickly as possible and avoid
intrusion and inconvenience to Kate Cronin.
As for Plaintiff's other requests that the Court: (1) bar Defendant from arguing that it
did not know of Plaintiff's lawsuit against Fast Model or that it did not know the specifics of
that lawsuit; and (2) give the jury an instruction that Defendant withheld the alleged forensic
examination and gave false discovery responses because the information was damaging
to their defense, the Court denies these requests. The Court finds these requests too
severe and premature at the present juncture.
As for both parties' request for attorneys' fees, the Court finds that neither party's
actions entitle them to such an award.
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III.

Conclusion
For the above-stated reasons, the Court GRANTS IN PART AND DENIES IN PART

Plaintiff's motion to show cause and request for sanctions.
So ordered.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: March 21, 2014
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on March 21, 2014, by electronic and/or ordinary mail.
s/Johnetta M. Curry-Williams
Case Manager
Acting in the Absence of Carol A. Hemeyer

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