LABMD, INC. v. TIVERSA HOLDING CORP. et al

Filing 351

ORDER denying 339 Motion for Discovery Coordination Order. Signed by Magistrate Judge Maureen P. Kelly on 5/28/2019. (ndf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LABMD, INC.,
Plaintiff,
vs.

TIVERSA HOLDING CORP.formerly
known as TIVERSA, INC.; ROBERT J.
BOBACK; M. ERIC JOHNSON; DOES
I· 10,
Defendants.

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Civil Action No. 15-92
Magistrate Judge Maureen P. Kelly

Re: ECF No. 339

ORDER OF COURT
Presently before the Court is PlaintiffLabMD, Inc.'s Motion for Discovery Coordination
Order and Brief in Support (collectively referred to as the "Motion"). ECF Nos. 338 and 339.
In the instant Motion, PlaintiffLabMD, Inc. ("LabMD") seeks the entry ofa discovery
coordination order in the following three cases:

United States ofAmerica ex. rel. Michael J, Daugherty v. Tiversa Holding Corp.,

Tiversa, Inc., Tiversa Government Inc., and Robert J Boback, in the United States
District Court for the Southern District of New York, Civil Action No. 14-cv-4548-DLC
(the "Qui Tam Action");

LabMD, Inc. v. Tiversa Holding Corp. Robert J. Boback and M Eric Johnson, in the
United States District Court for the Western District of Pennsylvania, Civil Action No.
2:15-cv-00092-MPK (the "WDPA Federal Action") and
Robert J Boback v. LabMD, Inc., Michael J Daugherty, Richard Wallace and Cause of
Action Institute, in the Allegheny County Court of Common Pleas, Civil Action No. GD14-016497 (the "State Action").
The apparent trigger for the instant Motion is that on May 9, 2019, Judge Christine Ward
of the Court of Common Pleas of Allegheny County issued an Order of Court lifting the stay of
discovery in the State Action. ECF No. 338-1. On the two sentence Order of Court, Judge Ward

hand-wrote "Parties to cooperate and coordinate discovery." Id. LabMD argues that this notation
by Judge Ward warrants the entry ofa discovery coordination order in the above-identified three
cases and an additional ten (10) month extension of discovery. LabMD further argues that there
is good cause for issuance of such an order because: the three identified cases are related and that
Attorney Steven Zoffer, who is not counsel in the WDPA Federal Action, recognized the need to
coordinate discovery in the cases. ECF No. 340 at 6-8.
Defendant Tiversa Holding Corp. f/k/a Tiversa, Inc. ("Tiversa") filed a Response to
Plaintiffs Motion for Discovery Coordination Order, ECF No. 346, in which it opposes the
instant Motion.

Tiversa incorporated its Response to the Motion to Modify Revised Case

Management Order to Extend Fact Discovery Deadline. ECF No. 345. Tiversa makes three
arguments in support of denial of the instant Motion. First, Ti versa argues that the instant Motion
should be denied because discovery must proceed in the proportionately limited manner
consistent with this Court's prior Orders in the WDPA Federal Action. (Tiversa points to the
Hearing Memo from the In-Person Status Conference on February 7, 2019 where this Court
reviewed the remaining portion of defamation per se claim as to Statements #13 and #16 and, as
such, the Court reminded counsel of the proportionality requirements of the Federal Rules of Civil
Procedure, ECF No. 324.) Second, Tiversa argues that LabMD's delay in filing its request to
coordinate discovery is unreasonable in light of the fact that it "inexplicably waited until less than
two weeks prior to the close of discovery in this case to request that discovery be coordinated
an[d] extended for an additional ten (10) months." ECF No. 346 at 2-3. Third, Tiversa argues
that Judge Ward's Order of Court does not control the WDPA Federal Action. Tiversa points out
that it is not a party to the State Action and Attorney Zoffer agreed only to coordinate the
production of documents. Id. at 3-4.

Upon review, the Court finds that all three of Tiversa's arguments in opposition to the
instant Motion have merit. It is significant to recognize that the WDPA Federal Action is four
years old and is now limited only to the remaining portion of the defamation per se claim as to
Statements #13 and #16. As such, this Court reminded counsel several times during and since
the February 7, 2019 status conference that this narrow discovery is limited by the proportionality
requirements of the recently amended Federal Rules of Civil Procedure. Therefore, the final four
months of discovery on this remaining claim was to close on June 1, 2019, however, by separate
order this date, discovery was extended until July 1, 2019 to facilitate the completion of
depositions and the Court ordered that no further extensions would be granted. ECF No. 349. In
contrast to the WDPA Federal Action, it appears that the Qui Tam Action and the State Action
are at different stages of litigation, involve different issues and have certain different parties.
Further, it appears from LabMD's argument that the additional ten months of discovery that it
seeks will be heavily focused on the Qui Tam Action and the State Action. For these reasons, it
is clear that the entry of discovery coordination order relative to fact discovery in all three cases
would unduly complicate and prolong the limited remaining discovery in the WDPA Federal
Action and substantially delay this case. Neither result is consistent with the requirements of the
efficient administration of justice. Therefore, this instant Motion will be denied.
That said, this Court continues to encourage counsel in this case to constructively
communicate on all discovery matters. To the extent possible and practicable, the parties may
jointly agree to coordinate certain overlapping discovery as it relates to the WDPA Federal
Action, however, all discovery in this case must be completed by July 1, 2019.

AND NOW, this 28'" day of May, 2019, it is HEREBY ORDERED, for the reasons set

forth herein, that PlaintiffLabMD's Motion for Discovery Coordination Order is DENIED.

BY THE COURT: