Bender et al v. Logan et al

Filing 34

ORDER granting 31 Renewed Motion to Compel Further Discovery and for Sanctions. Defendant Scott Logan shall pay to Plaintiffs the sum of $6,613.06, as an expense reasonably incurred by the forensic computer experts. Wit hin ten (10) days of this Order, Defendant Scott Logan shall either produce any additional Elite-related documents and materials that have not previously been produced, or shall certify in writing that none exist. Plaintiffs may re-depose Defendant Scott Logan within thirty (30) days at Defendants' expense. Signed by Magistrate Judge Stephanie K. Bowman on 2/6/14. (sct1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TRINA L. BENDER, et al.,

Case No. 1:12-cv-956

Plaintiffs,

Beckwith, J.
Bowman, M.J.

v.
JULIE LOGAN., et al.,
Defendants.
MEMORANDUM ORDER
I.

Background

This case has been referred to the undersigned magistrate judge for resolution of
discovery disputes. Those disputes began in earnest on May 17, 2013, when
Defendants first filed a motion to compel Plaintiffs to produce tax returns. 1 On May 30,
2013, Plaintiffs’ counsel alerted the undersigned, pursuant to LR 37.1, to the existence
of a second discovery dispute concerning Defendant Scott Logan’s personal computer.
The latter issue arose when, during Dr. Logan’s deposition, he testified that he deleted
relevant information from his computer following the commencement of this litigation.
On June 3, 2013, the undersigned granted Plaintiffs’ motion to compel Defendant Scott
Logan to allow a copy to be made of the hard drive of his personal computer. (Doc. 17).

1

As the undersigned noted in its order resolving that motion, the filing of the motion itself was in violation
of both local civil rules and the civil procedures of the undersigned, which explicitly require parties to
contact chambers prior to filing any discovery-related motion, and LR 37.1. The current motion filed by
Plaintiffs, by contrast, does not violate those rules since the court expressly directed Plaintiffs to file the
motion by January 14, 2014 to the extent that the parties’ dispute remained unresolved on that date.
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Following entry of the Court’s order, Plaintiffs’ experts obtained and examined a copy of
Dr. Logan’s computer. 2
Contrary to Dr. Logan’s deposition testimony, little responsive and relevant
information was discovered by the experts. Yet, the forensic computer experts were
able to ascertain that the computer had been used to remotely access relevant
documents, which documents appeared to be stored in the “Cloud” and were not
otherwise accessible from the computer. As a result of their frustrated efforts to obtain
the documents that Dr. Logan had testified he had personally deleted, Plaintiffs filed a
formal motion to compel production of the missing “Elite-related documents and
materials that Logan testified were on his personal computer” as well as “for an order of
sanctions for his failure to produce relevant documents and for misleading Plaintiffs'
counsel and this Court.” (Doc. 23). Plaintiffs accused Dr. Logan of “conducting a game
of ‘hide and seek’ to intentionally avoid

producing

requested and

relevant

documents,” noting that Plaintiffs had “incurred thousands of dollars of expense on
forensic experts and Plaintiffs' attorney time on Logan's intentionally created ‘wild goose
chase.’" (Id.).
On August 16, 2013, Defendant Logan, through new counsel, 3 filed a response in
opposition arguing that: (1) Plaintiffs misunderstood his testimony and/or he
misunderstood the deposition questions when he originally testified that he had stored
and deleted data from his personal computer; (2) Defendant should not be required to
pay for Plaintiffs’ expenses in “confirming” what Dr. Logan intended to be conveyed by
2

Plaintiffs point out that their efforts were delayed due to the representation of Dr. Bender’s counsel at the
time that the computer was inaccessible due to his client being out of the country on a three-week cruise,
a representation that subsequently proved to be inaccurate.
3
Although new Cincinnati counsel entered their appearance and have filed all documents on behalf of
Defendants since August 2013, Defendants’ original attormey remains listed as active co-counsel.
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his prior testimony; and (3) Defendant had already produced all responsive documents
in their possession and control “including any that may have been stored online,” but
would continue to work with Plaintiffs to produce yet-unknown relevant documents
obtainable from “cloud” storage. (Doc. 27).
Defendant’s response additionally argued that the information sought by Plaintiffs
was “trivial[]” and essentially unimportant to produce, either because Plaintiffs should be
in possession of the same information themselves (to the extent that the discovery
requests included requests for emails sent by Logan to Plaintiffs), and/or because the
financial projections were no more than “doodling economic projections” which were not
retained after the business plan was finalized. (Doc. 27 at 2-3). Plaintiffs filed a reply
memorandum on August 23, 2013, strongly contesting most of Defendant’s
representations, and quoting extensively from the deposition testimony that led to the
original dispute and this Court’s prior order. (Doc. 28). Plaintiffs further pointed out that
they did not receive information concerning the existence of one critically responsive
document (a business plan) until after Plaintiffs filed their motion to compel.
The Court scheduled a second telephonic hearing concerning the July 2013
motion. Prior to that hearing date, however, the parties agreed to privately mediate the
underlying dispute.

Therefore, on September 20, 2013, the Court vacated the

telephonic hearing and instructed counsel to “advise the Court if assistance in resolving
the motion is required after completion of private mediation.” On December 23, 2013,
based on representations of counsel and with hope that the parties might yet resolve
the discovery dispute in the context of a settlement of the whole case, the undersigned
denied Plaintiffs’ motion to compel and for sanctions, but without prejudice to renew

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should mediation prove unsuccessful. (Doc. 30). Regrettably, the parties’ efforts to
resolve their underlying dispute through mediation did not succeed. Trial is presently
scheduled to begin on August 18, 2014 before U.S. District Judge Sandra S. Beckwith,
with a final pretrial conference set for July 28, 2014.
Pursuant to the Court’s order, Plaintiffs renewed their motion for sanctions on
January 14, 2014. (Doc. 31). Both fact discovery and expert discovery presumably
were completed pursuant to the court’s prior scheduling order. (Doc. 20). In light of a
looming dispositive motion deadline of February 14, 2014, the undersigned directed the
parties to engage in expedited briefing of the Plaintiffs’ renewed motion to compel and
for sanctions.
II.

Analysis

In their renewed motion, Plaintiffs argue persuasively that the imposition of
sanctions is warranted, pursuant to Fed. R. Civ. P. 37.

Dr. Logan clearly failed to

produce documents responsive to Plaintiffs’ original requests. Having reviewed the
transcript of his deposition, the undersigned reaffirms the Court’s prior view that it was
Dr. Logan’s testimony that he deleted relevant documents from his home computer.
That testimony caused this Court to issue the order directing Defendant Logan to permit
Plaintiffs’ forensic computer experts to access his computer. Defendant’s testimony, as
it turned out, appears to have been as imprecise and incomplete as his original
document production. However, through the experts’ review of the computer, they were
able to confirm the existence of other Elite-related relevant and responsive documents.
It was only after Plaintiffs documented the results of that forensic examination in filing
the July 2013 motion to compel and for sanctions that Dr. Logan, through new counsel,

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finally produced hundreds of additional pages of responsive computer-generated
documents. 4
Plaintiffs assert in their current motion that spoliation of relevant evidence has
occurred; based upon Dr. Logan’s prior deposition testimony that he deleted relevant
documents from his home computer after the onset of this litigation. Plaintiffs argue that
they have been put to great expense, by virtue of being forced to employ forensic
computer experts to recover the allegedly deleted documents, even though Dr. Logan
was aware at the time that the missing documents would not be found on his computer,
because they were stored on a remote server and/or his computer had been
intentionally “scrubbed clean.” Plaintiffs seek monetary sanctions on the basis of the
alleged spoliation of evidence, pursuant to Rule 37(b)(2). Plaintiffs further seek an
order requiring Dr. Logan to produce, within seven (7) days, “any additional Elite-related
documents and materials that have not [been] produced or [to] certify that none exist.”
(Doc. 31 at 11). Last, Plaintiffs seek reimbursement “of all fees and expenses incurred
by Plaintiffs for their experts and their counsel and to reopen fact discovery for the
limited purpose of inquiring about these late-produced documents.”
Rule 37(b)(2), Fed. R. Civ. P., provides for a discretionary award of sanctions for
failure to comply with a court order. 5 In addition to a list of optional sanctions, ranging
from contempt of court to the entry of a default judgment, Rule 37(b)(2)(C) states that a
court “must order the disobedient party, the attorney advising that party, or both to pay
4

The origin of these late-discovered documents (whether from Cloud storage or a computer) remains in
dispute. However, it is not necessary for the undersigned to determine the origin of the documents at this
time. The salient fact is that they were not originally produced, but instead were “discovered” only after
this Court granted Plaintiffs’ motion to compel.
5
The language of Rule 37(b)(2) was revised as of December 2, 2013 but the revision does not affect the
court’s discussion here. The language of Rule 37(a), pursuant to which a monetary sanction is awarded
by this Order, was not revised.
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the reasonable expenses…caused by the failure [to obey the court order], including
attorney’s fees…unless the failure was substantially justified or other circumstances
make an award of expenses unjust.” The undersigned agrees that a monetary sanction
is justified in this case, but concludes that the appropriate provision for such an award is
Rule 37(a)(5) rather than Rule 37(b)(2). The former provision is the more applicable
because it provides for payment of expenses if a motion to compel disclosure is
granted, or if discovery is provided after the filing of such a motion.
On the facts presented, Defendant Logan did not technically fail to comply with
the court order compelling him to allow forensic access to his personal computer.
Rather, the order directing that compelled relief was granted after Defendant made a
woefully inadequate disclosure of documents in response to Plaintiffs’ initial discovery
requests, and admitted during his deposition that he had intentionally deleted some
relevant documents.

Under circumstances in which a motion to compel has been

granted, the language of Rule 37(a)(5) mirrors that of Rule 37(b)(2) in that a court
“must” make an award of “reasonable expenses incurred in making the motion,
including attorney’s fees” unless: 1) the motion to compel was prematurely filed without
attempting to resolve the dispute extrajudicially; (2) the nondisclosure was “substantially
justified;” or (3) other circumstances make an award unjust.
Defendants have filed a response in which they argue that: (1) Plaintiffs should
bear their own discovery costs, including that of their forensic computer experts,
because Dr. Logan’s testimony should have been interpreted in a manner consistent
with Defendants’ position that no responsive documents were likely to be found on the
computer; (2) an order compelling additional production “is overbroad and

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unwarranted,” and (3) an order concerning re-opening discovery to obtain additional
deposition testimony of Dr. Logan is “unnecessary.” (Doc. 32 at 1). Defendants do not
deny that they produced 926 additional pages of responsive documents only after this
discovery dispute was brought to the attention of the Court (twice, first during an
informal telephonic hearing and later through briefing of the July 2013 motion).
However, they contend that 557 pages “were documents Defendants received from
Plaintiffs’ [forensic computer] expert,” while another 166 pages were Plaintiffs’ own
emails.

Defendants also assert that reopening discovery or ordering Dr. Logan to

submit to a further deposition is unnecessary because: (1) Plaintiffs cannot prove that
additional responsive documents exist; and (2) Dr. Logan’s original deposition, along
with that of two other deponents, was continued by agreement “in progress.” (Doc. 32 at
2).
Defendants’ arguments are unpersuasive. As stated, the original order, which
led Plaintiffs to hire forensic computer experts, was the direct result of deposition
testimony in which Dr. Logan stated that he had deleted relevant documents from his
personal computer after the initiation of this litigation. Nor do Defendants dispute that
Dr. Logan failed to produce hundreds of relevant documents until after this discovery
dispute arose, and only after forensic examination of Dr. Logan’s computer confirmed
the existence of additional relevant documents. That 557 out of the 926 late-produced
documents were “received from Plaintiffs’ expert” actually confirms rather than
undermines the propriety of a monetary sanction in this case. As Plaintiffs point out,
those 557 pages were culled from the Logan computer by Plaintiffs’ forensic computer
expert after examination last June, as a result of this court’s order directing Dr. Logan to

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allow forensic access to his computer. Plaintiffs’ experts provided a copy of the 557
newly culled documents to defense counsel at that time.

More recently, after new

defense counsel entered their appearance, Dr. Logan’s new counsel included the same
set of documents in the production made to Plaintiffs in September. Thus, only loosely
can those documents be described as “received from Plaintiffs’ expert.” Clearly, their
origin was the compelled search of Dr. Logan’s computer.
Additionally, the undersigned cannot agree with Defendants’ assertion that an
order requiring Defendants to either produce “any additional Elite-related documents
and materials that have not [been] produced or [to] certify that none exist,” and directing
Dr. Logan to submit to a further deposition at Defendants’ expense, is neither warranted
nor necessary. An agreement by the parties to continue a particular deposition “in
progress” does not ordinarily trump the Court’s calendar order requiring discovery to be
completed and dispositive motions to be filed by a date certain.

The deadline for

completion of all discovery expired long ago, and there is no guarantee that the
presiding district judge would permit the continued deposition of Dr. Logan so long after
that deadline, merely by agreement. Moreover, the type of gamesmanship that has
been demonstrated by Dr. Logan in this case supports the imposition of an order that
would afford Plaintiffs an additional measure of certainty that, at last, all relevant
documents have been or will be produced.
III.

Conclusion

Accordingly, IT IS ORDERED HEREIN:
1. Plaintiffs’ renewed motion to compel further discovery and for sanctions
(Doc. 31) is GRANTED as further described below;

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2. As a monetary sanction for the conduct of Defendant Scott Logan, which
resulted in unnecessary additional discovery costs in this case, Defendant
Scott Logan shall pay to Plaintiffs the sum of $6,613.06, as an expense
reasonably incurred by the forensic computer experts. However, because
that award is towards the higher end of what the undersigned deems to be
reasonable, no additional award will be made concerning attorney’s fees;
3. Within ten (10) days of this Order, Defendant Scott Logan shall either
produce any additional Elite-related documents and materials that have not
previously been produced, or shall certify in writing that none exist;
4. Plaintiffs may re-depose Defendant Scott Logan within thirty (30) days at
Defendants’ expense. However, the decision to redispose Dr. Logan shall not
change any previously scheduled court deadline, including the February 14,
2014 deadline for the filing of dispositive motions, absent further motion and
order by the presiding district judge.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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