Presswood, D.C., P.C. v. American HomePatient, Inc.
Filing
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MEMORANDUM AND ORDER re: 67 MOTION to Amend/Correct 57 Order on Motion for Miscellaneous Relief the Protective Order filed by Plaintiff Alan Presswood, D.C., P.C., 59 MOTION filed by Plaintiff Alan Presswood, D.C., P.C. IT IS H EREBY ORDERED that plaintiff is granted leave to file a supplemental memorandum within ten (10) days narrowing the scope of his discovery request commensurate with this memorandum and order. Defendant shall have five (5) days following the filing of plaintiff's supplemental memorandum for which to file a short response thereto. Signed by District Judge Stephen N. Limbaugh, Jr on 4/30/19. (CSG)
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
This matter comes before the Court on plaintiff’s motion for additional discovery
(#59) and motion to amend the protective order (#67). Those motions have been fully
briefed. For the reasons stated below, this Court will not yet rule on plaintiff’s motions,
but will instead grant plaintiff leave to file a supplemental memorandum within ten (10)
days narrowing the scope of his discovery request commensurate with this memorandum
and order. Defendant shall have five (5) days following the filing of plaintiff’s
supplemental memorandum for which to file a short response thereto.
I.BACKGROUND
This Court has previously noted the “unusually long history” of the parties’
ongoing dispute, having recounted that it began in August 2014 with the filing of
Geismann v. American Homepatient, Inc., No. 4:14-cv-1538 (E.D. Mo.) in Missouri state
court. That case was eventually removed and, as was explained in the parties’ Joint
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Proposed Scheduling Plan in this case, a “large amount of discovery” was completed
during its pendency. Geismann was ultimately dismissed, however, because—in
plaintiff’s own words—“no expert was allowed in the Giesmann case.” That statement
references Judge White’s decision to strike the expert declaration of Robert Biggerstaff
(the same expert used in the current case) after his expert designation came “three years
after the case was filed, and over fourth months after the deadline of expert witness
disclosures expired.” Radha Giesmann, M.D., P.C. v. American HomePatient, Inc., 2017
WL 2709734 *3 (E.D. Mo. June 22, 2017). Faced with the evidentiary hurdle of having
his expert struck, Geismann “wanted to have [his] case dismissed,” which was
accomplished just before a class certification hearing could be conducted, and the current
plaintiff “agreed to act as a class representative” in Geismann’s stead. A few weeks later,
“plaintiff’s attorney filed this case, which”—as this Court observed—“mirrors, almost
word-for-word, the lawsuit brought by plaintiff Geismann.” Presswood v. American
Homepatient, Inc., 2018 WL 2219434, at *1 (E.D. Mo. May 15, 2018). It, too, was
removed to federal court on July 14, 2017.
Procedural history aside, both Geismann and the immediate case revolve around a
long, ongoing search for certain “RightFax data” that plaintiff believes will show
defendant violated the Telephone Consumer Protection Act by sending “unsolicited
facsimile advertisements to [the] members of the putative class.” Giesmann, 2017 WL
2709734 at *1, *3. The parties disagree whether defendant has outright stated the data no
longer exists—plaintiff suggests defendant may have changed its tune as late as April 13,
2018, when it stated in one of its briefs that backup tapes do exist that may or may not
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contain the RightFax data, even if it is no longer stored on local servers. In any event,
plaintiff has continued to search for this data for quite some time and defendant has been
adamant that its own search efforts have revealed that none exists.
Whatever that dispute may yield, this Court recognized the discovery efforts
already completed in Geismann mitigated against a discovery “do-over” and, therefore,
set a somewhat expedited initial discovery deadline of January 29, 2018. (#25).1 With this
deadline fast approaching, plaintiff sought a two-month extension on January 29, 2018,
because the parties were unable to agree on deposition dates for two of defendant’s
former employees—David Morris and Jessica Riley. That extension was granted,
extending the discovery deadline until April 27, 2018. (#35). On day fifty-three of the
extended fifty-seven-day discovery window, plaintiff finally deposed defendant’s two
former employees. During those depositions, plaintiff learned “the identity of
[defendant’s] actual employee”—Rory McKenna—“who was instructed to perform the
[unsuccessful] search for the fax transmission data.” (#44, p.2). In light of learning the
employee’s identity, plaintiff then asked for another 30-day extension to the discovery
deadline so that he could depose that (now former) employee. He “want[ed] to depose
Mr. McKenna to find out what search was conducted, by whom …, and what is the
default time for purging and/or overwriting the database.” (#46, p. 2). Appreciating that
plaintiff had just learned of McKenna’s name and may have “just learned that backup
tapes were created and might still exist,” this Court again granted an extension so that
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The order set the deadline for January 28, 2018, which fell on a Saturday. However, the text
entry for the order clarified that the deadline would be Monday, January 29, 2018.
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plaintiff could continue his search for the RightFax data. (#48, p.4). The new discovery
deadline was set for June 18, 2018. McKenna was not deposed, however, because of the
parties’ agreement to delay it “pending the forensic examination of the backup tapes.”
(#66, p. 6).
Indeed, on June 11, 2018, this Court agreed to allow a third party neutral to
perform a search of defendant’s relevant backup tapes as identified by the parties. This
Court also entered a protective order mandating that a third-party neutral, rather than
plaintiff’s expert, perform the search. The parties eventually agreed that 26 backup tapes,
created in June 2013, were most likely to contain the relevant RightFax data—this was
based on information learned in the Morris deposition about defendant’s retention
protocols. And so, a third-party neutral, 4Discovery, LLC., took possession of the tapes
on September 13, 2018, and proceeded to catalogue and inventory their contents.
On December 4, 2018, 4Discovery informed the parties that “the SQL cluster
containing the RightFax database is not located on the tapes that were provided to us.”
(#59-1, p.3). On December 12, 2018, 4Discovery responded to clarifying questions from
plaintiff’s attorney stating “there appears to be both full and partial backup jobs for the
RightFax databse in addition [to] the other databases” (59-1, p.1). This prompted a series
of additional emails between the parties about what 4Discovery meant, with defendant’s
counsel eventually stating: “we don’t believe 4Discovery made any representation as to
whether additional backup tapes may (or may not) exist that contain backup of the
RightFax SQL database containing fax transmission data—if someone at 4Discovery
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could confirm our understanding, that would be much appreciated.” (#59-3
(emphasis in original)). 4Discovery responded:
4Discovery examined the tapes that were provided to us, and there were no
backups on those tapes for the RightFax database. On those tapes, we saw
reference to a backup job for the RightFax database. However, there
was no additional information that told us where the data was backed up
(i.e. a specific tape number) or if it resided on any tapes that fall outside of
the timeframe of interest. We were simply stating that we would need
access to a data source containing the backup in order to proceed with the
rest of the tasks per the protocol for this matter.
(#59-3 (emphasis added)). This response, particularly the highlighted language, has
encouraged plaintiff to seek yet more time to conduct further discovery. Now, plaintiff
seeks an additional 90-day extension to “allow plaintiff to continue its search for the fax
logs” and an order “require[ing] defendant to produce whatever witnesses are necessary
with knowledge of its electronic storage and back up procedures to allow 4Discovery to
narrow its search.” In addition, plaintiff requests that the protective order be amended to
“clarify the duties of 4Discovery” and “set up a procedure if a dispute between the parties
arises.” It appears from plaintiff’s motion that he wants to be able to ask 4Discovery to
perform any task and, if defendant refuses and a stalemate ensues, have this Court
“determine whether 4Discovery can perform the task.” In his reply brief, he is also now
asking to re-depose Morris—apparently in addition to McKenna—“who is familiar with
the procedures of defendant” relative to its back-up procedures.
II. ANALYSIS
Pursuant to Rule 16(b)(4), “[a] schedule may be modified only for good cause and
with the judge’s consent.” FED. R. CIV. P. 16(b)(4). The Eighth Circuit has explained that
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“[t]he primary measure of good cause is the movant’s diligence in attempting to meet the
scheduling order’s requirements.” Harris v. FedEx Nat. LTL, Inc., 760 F.3d 780, 786 (8th
Cir. 2014). But, “[a] district court may also consider the existence or degree of prejudice
to the party opposing the modification.” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d
748, 759 (8th Cir. 2006). Ultimately, adherence to a scheduling order is necessary to
achieve “the primary goal of the judiciary: to serve the just, speedy, and inexpensive
determination of every action.” Id. Thus, while diligence and prejudice sit on the
pendulum of things to be weighed, it is ultimately an exercise of the court’s sound
discretion to decide whether further modification of a scheduling order is warranted. Id.
(noting “the district court has broad discretion in establishing and enforcing the
deadlines); Kmak v. Am. Century Companies, Inc., 873 F.3d 1030, 1034 (8th Cir. 2017)
(explaining that a district court’s decision whether to deny a motion to amend is reviewed
for an abuse of discretion).
Here, plaintiff states he has been diligent in attempting to locate the RightFax data
he seeks. That much seems clear enough from the record. While it can be argued that
plaintiff was, perhaps, inefficient in his search—defendant takes issue with plaintiff
knowing about certain underlying facts, but waiting too long to act on them—the total
record seems to suggest, ultimately, that both parties have been adamant in their
respective beliefs and both have pursued these beliefs with some vigor. Plaintiff is
convinced defendant is obfuscating relevant information and has not hesitated to seek out
as many of defendant’s records and witnesses as possible, and defendant is convinced
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plaintiff is engaged in a never-ending witch hunt—demanding total and unmitigated
access to a range of sensitive information that is both inappropriate and costly to produce.
If the notion of “diligence” were judged in a vacuum, it might be easy to conclude
that plaintiff has been diligent in his pursuit of the long-lost RightFax data and, thus, that
he should be entitled to additional discovery. Conversely, defendant is not wrong to
emphasize the prejudice that attaches to a five-year-old dispute that seems never-ending
at this point—the associated cost of conducting protracted litigation and discovery, alone,
has a deleterious effect. As has been explained, “the longer a plaintiff delays, the more
likely the motion to amend will be denied, as protracted delay, with its attendant burdens
on the opponent and the court, is itself a sufficient reason for the court to withhold
permission to amend.” Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004); see
also Kozlov v. Associated Wholesale Grocers, Inc., 818 F.3d 380, 395 (8th Cir. 2016)
(noting that “requiring a re-opening of discovery with additional costs” is “particularly
disfavored”).
It is ultimately plaintiff’s rather vague, open-ended request that compels this Court
to decide against granting his motions, however. Plaintiff amorphously wishes to dive
into at least two more sets of backup tapes that might have the relevant data contained in
them, he wishes to have 4Discovery do any undefined tasks that might seem pertinent
moving forward and to have this Court resolve the inevitable stalemates, he wants
“whatever witnesses are necessary” to be produced by defendant, and he wants to depose
one of defendant’s corporate representative on no less than forty different topics.
Discovery is not winding down after all this time; rather, plaintiff’s seeks to ramp it up.
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The simple fact is, plaintiff’s request for more discovery lies in speculation. His
only proof that the data exists is based on a loose inference that it must exist because
4Discovery “saw reference to a backup job for the RightFax database” and because his
own expert made an unsupported guess that “there is a high likelihood that at least some
or all of the logs records [exist] in quarterly backups purported to be made in September
of 2013 and December 2013, in addition to the June 2013 backup.” If “the theoretical
possibility that more documents exist sufficed to justify additional discovery, discovery
would never end.” Hubbard v. Potter, 247 F.R.D. 27, 29 (D.D.C. 2008). And so, this
Court cannot condone a further expansion to discovery beyond what was contemplated in
this Court’s last discovery order.
That said, the fact is 4Discovery has unveiled some evidence, speculative as it is,
that the relevant backup tapes of the RightFax data do exist somewhere. It may be that
the parties simply chose the wrong set of tapes to review. Therefore, while this Court is
not inclined to grant plaintiff the sweeping discovery he seeks, the Court is nonetheless
amenable to allowing a limited, well-defined window of additional discovery so that the
current discovery path the parties have been engaged in for the past several months can
come to a conclusive end. It seems plaintiff wishes to review the September 2013 and
December 2013 backup tapes based on the backup protocols they’ve already identified in
seeking the June 2013 tapes. The Court will provide plaintiff ten (10) days to file an
additional memorandum requesting those tapes, or other discovery, that comports with
this Court’s view that discovery should be narrowing down to an endpoint after more
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than five years of effort. And defendant will be given an opportunity to explain how, if at
all, plaintiff’s revised request is prejudicial to its position.
III. CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that plaintiff is granted leave to file a supplemental
memorandum within ten (10) days narrowing the scope of his discovery request
commensurate with this memorandum and order. Defendant shall have five (5) days
following the filing of plaintiff’s supplemental memorandum for which to file a short
response thereto.
So ordered this 30th day of April 2019.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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