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Susan Patroski v. Pressley Ridge and B. Scott Finnell

November 17, 2011

SUSAN PATROSKI, PLAINTIFF,
v.
PRESSLEY RIDGE AND B. SCOTT FINNELL, DEFENDANTS.



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER OF COURT

Pending before the Court are the following Motions:

* Plaintiff's MOTION FOR ORDER COMPELLING TIMELY MAILING OF DOCUMENTS (Document No. 30), the DECLARATION OF VIOLET ELIZABETH GRAYSON (Document No. 31), PRESSLEY RIDGE'S RESPONSE IN OPPOSITION (Document No. 34), DEFENDANT FINNELL'S RESPONSE IN OPPOSITION (Document No. 38), and the REPLY DECLARATION OF VIOLET ELIZABETH GRAYSON IN SUPPORT OF MOTION TO COMPEL TIMELY MAILING OF DOCUMENTS (Document No. 37); and

* Defendants' MOTION FOR APPOINTMENT OF SPECIAL DISCOVERY MASTER (Document No. 35) and the DECLARATION OF VIOLET ELIZABETH GRAYSON IN OPPOSITION TO MOTION TO APPOINT SPECIAL MASTER (Document No. 36).

Both Motions have been fully briefed and are ready for disposition. The Court will address same seriatim.

A. Motion for Order Compelling Timely Mailing of Documents

Distilled to its essence, the current dispute is two fold: (i) the first issue involves the place and manner of production of Defendants' documents identified pursuant to their Rule 26(a)(1) disclosures and those documents identified in response to Plaintiff's discovery requests and (ii) the second issue involves the date for completion of the production. Oddly, the Court notes that this motion was filed prior to the deadline Defendants' written responses to the document requests were due.

Defendant Pressley Ridge has identified 2000 documents pursuant to its Rule 26(a)(1) disclosure, and an 400 additional pages in response to the document production. Defendant represents that these documents are available for review at defense counsel's office in Pittsburgh.

Defendant Pressley Ridge also represents that because the parties have not agreed upon search terms for electronic searching, Defendants have not been able to commence electronic-searching and do not know how much time will be needed to conduct those electronic searches.

Defendant Finnell represents that many of the documents requested of him which may be responsive to Plaintiff's requests are in the possession of Pressley Ridge and will be produced by counsel for Pressley Ridge. Additionally, Finnell has agreed to make available for review by Plaintiff's counsel certain responsive books in defense counsel's office in Pittsburgh at the time of the November 18 case management conference, and has advised that if additional responsive books are located, those too will be made available for review. Also, like Pressley Ridge, Finnell contends that the methodology for ESI searching and production has not been agreed upon by all counsel, and after such methodology is determined, Defendants will need time to conduct the ESI searches, review the documents resulting from the searches, and produce discoverable documents.

Defense counsel have also explained to Plaintiff's counsel that additional responsive documents might be "unearthed as discovery unfolds" and that, in such case, the document production would be supplemented as required by Federal Rule of Civil Procedure 26(e).

Plaintiff contends that because she previously duplicated, at her own expense, and then mailed her responsive documents to defense counsel, defense counsel should reciprocate and duplicate and mail to her their responsive documents. At first blush, this seems reasonable. But, as defense counsel point out, neither defense counsel ever asked Plaintiff to make a copy of any document at her own expense. Plaintiff's counsel elected to make copies of the documents and forwarded those to defense counsel. Defense counsel have informed counsel for Plaintiff that their documents are available for review in Pittsburgh, or "if she would prefer to have copies made and shipped to her, she can either: (i) notify defense counsel of a copying service in Pittsburgh for Defendants to send the documents for copying at Plaintiff's expense; or (ii) send defense counsel a check to cover the copy of copying if she would prefer that [Defendants] undertake the copying for her."

Ordinarily, where records of a business are to be examined for discovery, they should not be required to be delivered to the adversary, but to be made available for inspection at the owner's place of business, during reasonable business hours, unless the parties mutually agree to some other place and time. Niagara Duplicator Co. v. Shakleford, 160 F.2d 25, 26-27 (D.C. Cir. 1947).

After careful consideration, the Court finds that Defendants attempts to accommodate Plaintiff's request for production of documents is more than reasonable. Accordingly, Defendants may produce the documents at their respective Pittsburgh attorney's offices and permit Plaintiff's counsel to inspect or copy them, or, at Plaintiff's ...


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