CAMESI et al v. UNIVERSITY OF PITTSBURGH MEDICAL CENTER et al

Filing 545

ORDER re 511 Bill of Costs. The Court finds that Defendants' costs for "Process[ing] to Ontrack Inview" are recoverable under Race Tires. Given the possibility of further appellate review, however, the Court believes that any remaining information regarding the salient issues, identified in this Order, should be made part of the trial-court record. To the extent that additional, potentially-relevant information exists, by necessity, it would be in the primary possess ion of Defendants and/or Kroll. Thus, Defendants are afforded until 12/4/17 to supplement the record. Plaintiffs may respond to Defendants' supplemental information by 12/19/17. Their response shall refrain from making further arguments rega rding matters already decided, explicitly and implicitly, herein. Plaintiffs' compliance with this limitation, however, is without prejudice to their advancing on appeal any previously-stated arguments or positions. Signed by Judge Cathy Bissoon on 11/15/17. (dcd)

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

KAREN CAMESI, et al.,
Plaintiffs,
v.
UNIVERSITY OF PITTSBURGH
MEDICAL CENTER, et al.,
Defendants.

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Civil Action No. 09-85J
Judge Cathy Bissoon

ORDER
Having conducted a Hearing consistent with the Circuit’s guidance (see Doc. 525),
the Court finds as follows. The only competent evidence, unrefuted by Plaintiffs, establishes that
“Process[ing] to Ontrack Inview” was the means by which native files were converted to TIFF
format. See Hearing Tr. (Doc. 540) at 48-49.1 Although Defendants’ witness indicated that the
process also entailed “load[ing]” the TIFF’ed data into the Inview platform, id. at 58, there is no
indication that the loading-function entailed additional energy, effort or expense.
To the contrary, Defendants’ witness testified that the costs/charges associated with
TIFFing, versus TIFFing plus loading, were “very similar,” if not identical. Id. at 59-60.
The witness stated that, within the context of Camesi, differentiating between TIFFing and
TIFFing-plus-loading was inconsistent with the “contemplated workflow,” and that, as a result,
parsing “line item” distinctions did not fit “the context of this case.” See id. at 60.

Defendants’ witness, Yakov Zylbershlag, credibly so-testified, based on personal knowledge
and his review of Camesi-related business records. See generally id. at 49-50. The Court also
finds that, to the extent Mr. Zylbershlag may be viewed as a hybrid fact/expert witness,
his opinions are admissible under Federal Rules of Evidence 702 and 703.
1

These conclusions are bolstered by the broader context. Defendants retained their ESIvendor, Kroll, no later than October 2010,2 and the billings in question were generated
roughly sixteen (16) months prior to the Court of Appeals for the Third Circuit’s decision in
Race Tires Amer., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. Mar. 16, 2012).
Race Tires involved matters of first impression, see id. at 159; and, its general theme of
narrow-construction notwithstanding, this Court has no reason to believe that the decision
endorses, let alone commands, hindsight-driven “ex post facto” dissections of Kroll’s pricingstructures.3 In any event, the only competent evidence of record indicates that presumed
distinctions between TIFFing and TIFFing-plus-loading are conjectural, rather than grounded in
existing-reality.
For these reasons, the Court finds that Defendants’ costs for “Process[ing] to Ontrack
Inview” are recoverable under Race Tires.4 Given the possibility of further appellate review,
however, the Court believes that any remaining information regarding the salient issues,
now identified, should be made part of the trial-court record.

See Kroll’s “UPMC Project Data Map,” created October 25, 2010 (attached as Ex. A
to Defs.’ Hr’g Ex. D-1, as memorialized in Hearing Exhibit List (Doc. 539)).
2

If anything, a more appropriate inquiry under the circumstances might be the difference in
resources and/or effort demanded – as opposed to pricing variations based on prevailing
market forces. Only after Race Tires was decided would litigants in this Circuit understand its
potential billing/line-itemizing implications.
3

In support of this determination, the Court hereby adopts – and incorporates by reference –
Defendants’ proposed Findings of Fact and Conclusions of Law (Doc. 543), to the extent they
are consistent.
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2

To the extent that additional, potentially-relevant information exists,5 by necessity,
it would be in the primary possession of Defendants and/or their vendor. Thus, Defendants
are afforded until December 4, 2017 to supplement the record. Plaintiffs may respond to
Defendants’ supplemental information by December 19, 2017. Their response shall refrain from
making further arguments regarding matters already decided − explicitly and implicitly – herein.
Plaintiffs’ compliance with this limitation, however, is without prejudice to their advancing
on appeal any previously-stated arguments or positions.
IT IS SO ORDERED.

November 15, 2017

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

cc (via ECF email notification):
All Counsel of Record

Among other things, this may include information/explanations regarding ESI-related service
and billing negotiations, documents and instruments, and the efforts and resources required of
Kroll to execute the TIFFing versus TIFFing-plus-loading functions.
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