Presswood, D.C., P.C. v. American HomePatient, Inc.
Filing
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MEMORANDUM AND ORDER:IT IS HEREBY ORDERED that plaintiff's motion to compel and for entry of a protective order regarding electronic discovery (#36) is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that a neutral third party should p erform any recovery and search of the backup tape of defendant's SAN data. IT IS FURTHER ORDERED that, within 10 days, the parties shall submit a mutually agreed to protective order that lays out (1) a neutral third-party expert the parties agre e to, (2) the procedure that will govern the recovery and search, and (3) specifically what information and/or documents the third-party expert will be searching for. ( Response to Court due by 6/21/2018.) Signed by District Judge Stephen N. Limbaugh, Jr on 6/11/2018. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ALAN PRESSWOOD, D.C., P.C.,
individually and on behalf of all other
similarly situated persons,
Plaintiff,
v.
AMERICAN HOMEPATIENT, INC.,
and JOHN DOES 1–10
Defendants.
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Case No. 4:17-CV-1977-SNLJ
MEMORANDUM AND ORDER
Plaintiff alleges defendant violated the Telephone Consumer Protection Act when
it sent him an unsolicited fax in June 2013. The case is currently before the Court on
plaintiff’s motion to compel and for entry of a protective order regarding electronic
discovery (#36). The issue is ripe, and the motion will be granted in part and denied in
part.
The “missing fax transmission logs” that correspond to the allegedly unsolicited
faxes are at issue in the motion to compel. In his motion to compel, plaintiff originally
asked the Court to enter a protective order requiring defendant to allow imaging of its
storage area network (“SAN”) data storage devices. Plaintiff believes the SAN data
house the fax transmission logs that defendant—after searching its data—claims no
longer exist.
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In his reply memorandum in support of the motion to compel, plaintiff claims that
defendant disclosed—for the first time (defendant forcefully disputes this) in its response
brief—that a backup tape of its SAN data exists. Plaintiff also learned that “daily
backups were maintained for 45 days, months-end backup tapes were retained 18 months,
and quarterly tapes were retained seven years at that time.” (#47 at 1.) Thus, in his reply
brief, plaintiff narrowed the motion to compel “to all existing backup tapes covering the
date on June 22, 2013, including but not limited to the quarterly backup tape, which
would have been created on June 30, 2013.” (#47 at 2.)
Defendant hardly objects to the narrowed motion to compel: “Since Plaintiff has
agreed to bear the costs of the forensic recovery and searching and if a ‘narrow[ed] . . .
motion to compel’ for ‘backup tapes covering the date [of] June 22, 2013’ (Dkt. 47 at 2)
is what is before this court, then such a narrowed request may be apt.” (#52 at 2)
(alterations in original). Both parties agree the backup tape should be searched for the
fax transmission logs at issue in this case.
The parties disagree as to the procedure—namely, who will be doing the
searching—that should be used to search the backup tape. Plaintiff proposes the
following procedure. First, the backup tape should be given to a computer tape specialist
who will restore the data from the tape and make two copies. Next, the specialist will
give one copy to the defendant and the other copy to plaintiff’s retained expert, Robert
Biggerstaff. Then, Mr. Biggerstaff will review that data for anything that might be
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relevant 1 to this lawsuit. Next, Mr. Biggerstaff will prepare a list and summary of the
information that he believes falls into the relevant categories. Defendant’s counsel will
then review the summaries and copies of the data for responsiveness, privilege, or other
grounds. Finally, defendant will produce any responsive and non-privileged information
that Mr. Biggerstaff identified.
Defendant argues that a neutral third party—not Mr. Biggerstaff—should perform
any recovery and search of the backup tape. The neutral third party will “attempt to
locate fax transmission logs related to the fax transmissions at issue in this case, and
provide those files to” defendant. (#52 at 9.) Then, defendant will review the files for
relevant data, “specifically, data or files [related] to the alleged faxing at issue in this
case, and produce them to Plaintiff.” (#52 at 9.)
Defendant points out “practical problems” related to Mr. Biggerstaff’s performing
the search. First, defendant claims “certain communications between Biggerstaff and
Plaintiff’s counsel (but not Defendant’s counsel) would be protected by privilege[.]”
(#52 at 8.) Second, defendant argues “Biggerstaff could not perform his duties as a
neutral, third-party examiner, and also then turn around and file an expert report as an
advocate for plaintiff’s position. These actions would create an appearance of
impropriety that would prejudice defendants.” (#52 at 8.)
The Court agrees that a neutral third party should perform any recovery and search
of the backup tape. See Playboy Enterprises, Inc. v. Welles, 60 F. Supp. 2d 1050, 1054
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Mr. Biggerstaff lists the information that he would look for in paragraph five of plaintiff’s
proposed protective order. (#37-1 at 2–3, ¶5.)
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(S.D. Cal. 1999) (describing the expert as an “outside expert” acting as “an Officer of the
Court”); Simon Prop. Grp. L.P. v. mySimon, Inc., 194 F.R.D. 639, 641 (S.D. Ind. 2000)
(describing the expert as an “officer of the court”); DiMartini v. Purcell Tire & Rubber
Co., No. 3:09-CV-0279-ECR VPC, 2010 WL 5070756, at *4 (D. Nev. Dec. 7, 2010)
(“The court cannot reconcile Mr. Wallace’s role as a jointly retained independent
accountant with Purcell’s designation of him as an expert witness.”).
The Court will entertain a mutually agreed to protective order that lays out (1) a
neutral third-party expert the parties agree to, (2) the procedure that will govern the
recovery and search, and (3) specifically what information and/or documents the thirdparty expert will be searching for.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to compel and for entry of a
protective order regarding electronic discovery (#36) is GRANTED IN PART and
DENIED IN PART.
IT IS FURTHER ORDERED that a neutral third party should perform any
recovery and search of the backup tape of defendant’s SAN data.
IT IS FURTHER ORDERED that, within 10 days, the parties shall submit a
mutually agreed to protective order that lays out (1) a neutral third-party expert the
parties agree to, (2) the procedure that will govern the recovery and search, and (3)
specifically what information and/or documents the third-party expert will be searching
for.
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Dated this
11th
day of June 2018.
_______________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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