Ameritox, Ltd. v. Millennium Laboratories, Inc.

Filing 12

Memorandum of Opinion and Order For the reasons set forth herein, the Motion to compel discovery filed by Ameritox, Ltd. (ECF No. 1 ) is granted. Judge Benita Y. Pearson on 5/6/2014. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

AMERITOX, LTD.,
Plaintiff,
v.
MILLENNIUM LABORATORIES, INC.,
Defendant.

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CASE NO. 1:13MC082

JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF No. 1]

Pending is Plaintiff’s Motion to Compel Brandon Worley to Produce Documents in
Response to Subpoena Duces Tecum (ECF No. 1), filed on September 27, 2013. On April 8,
2011, the underlying lawsuit for alleged unfair and illegal business practices that began in 2008
was filed in the United States District Court for the Middle District of Florida, Tampa Division,
being Case No. 8:11-cv-775-T-24-TBM (“Florida Litigation”). See ECF No. 1-5; see also ECF
No. 1-6. Plaintiff and Defendant are competitors providing urine drug testing services to health
care providers. The Court has been advised, having reviewed the record,1 the parties’ briefs and
the applicable law. For the reasons set forth below, the Court grants the motion.
On April 13, 2009, Defendant entered into a formal consulting agreement with BNJ
Medical Consultants, LLC (“BNJ”) and its owners—Brandon Worley (“Worley”), Nick DePriest
(DePriest”), and Jason Bristol (“Bristol”)—through which they would serve as sales

1

The Florida Litigation is currently set for a Pretrial Conference on May 9, 2014
and jury trial on June 2, 2014. See ECF No. 11.

(1:13MC082)
representatives for Defendant. See ECF No. 1-12; see also ECF Nos. 1-14, 1-15, 1-16, and 1-18.
BNJ remained under contract with Defendant until August 31, 2009. See ECF No. 1-16; see also
ECF No. 1-18. Before entering into the formal agreement, Worley, DePriest, and Bristol
provided sales representative services to Defendant as 1099 independent contractors. See ECF
No. 1-15. On September 1, 2009, Worley, DePriest, and Bristol became employees of
Defendant. See ECF Nos. 1-12, 1-14, 1-16, and 1-18.
In September 2012, Plaintiff served a subpoena duces tecum (ECF No. 1-1) upon Worley,
a third-party to the Florida Litigation,2 seeking the production of documents with a time scope of
January 1, 2008 through August 29, 2012.3 Plaintiff seeks documents related to BNJ’s or
Worley’s communications with Defendant’s actual or potential customers; documents provided
to Defendant’s actual or potential customers; sale, marketing, promotion, and pricing of
Defendant’s products or services; point of care urine testing cups (“POCT”), drug testing
supplies, in-office chemical analyzers, and any other drug testing devices; communications with
third-party Aldora Bristol regarding consulting services that she performed for Defendant’s
customers; and billing for POCT tests. Plaintiff seeks these documents from Worley “as [an]
employee[ ] of BNJ . . . and as [an] individual[s] and not as [a] current employee[ ] of
[Defendant].” ECF Nos. 1-9 and 1-17.

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Worley is currently a Regional Vice President of Defendant.

3

The parties to the Florida Litigation have agreed that the time period for
responsive documents is January 1, 2008 through August 29, 2012. See ECF No. 1-7.
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On January 23, 2013, Worley did produce emails from his personal email account dated
April 6, 20094 through August 31, 2009. See ECF No. 1-12; see also ECF Nos. 1-13 and 1-14.
He did not withhold any documents as allegedly irrelevant for that time period. See ECF Nos. 112 through 1-18. Worley does, however, refuse to produce documents dated before BNJ entered
into the consulting agreement. He argues that documents dated before April 13, 2009 are
irrelevant and the subpoena is unduly burdensome.
Plaintiff’s Motion to Compel Brandon Worley to Produce Documents in Response to
Subpoena Duces Tecum (ECF No. 1) is granted. Worley shall forthwith produce the remaining
documents, dated January 1, 2008 through April 13, 2009, within his possession, custody, or
control regarding communications with third-parties or among himself, DePriest, and Bristol to
which Defendant was not a party that are responsive to the subpoena. See Ameritox, Ltd. v.
Millennium Laboratories, Inc., No. 1:13-mc-00051-UA-JEP (M.D.N.C. filed December 31,
2013) (granting plaintiff’s motion to compel third-party Nick DePriest to the extent that
production will be required as provided in the parties’ joint submission); see also Ameritox, Ltd.
v. Millennium Laboratories, Inc., No. 8:11-cv-775-T-24-TBM (M.D. Fla. filed Dec. 12, 2013) (in
response to plaintiff’s motion to compel third-party Jason Bristol, Defendant ran some 60 search

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Worley previously represented that BNJ’s consulting agreement with Defendant
began on April 6, 2009, such that he produced documents dated between April 6, 2009
and April 13, 2009. See ECF No. 1-12; see also ECF No. 1-14. After he clarified that the
date of the consulting agreement was April 13, 2009, Worley revised his objection
accordingly to object to producing documents dated before April 13, 2009. See ECF No.
1-14.
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terms against Bristol’s personal and company email and, thereafter, produced the emails,
including those from 2008).

IT IS SO ORDERED.

May 6, 2014
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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