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Labmd, Inc. v. Tiversa Holding Corp.

United States District Court, W.D. Pennsylvania

July 15, 2019

LABMD, INC., Plaintiff,
v.
TIVERSA HOLDING CORP. formerly known as TIVERSA, INC.; ROBERT J. BOBACK; M. ERIC JOHNSON; DOES 1-10, Defendants.

          MEMORANDUM ORDER

          Maureen P. Kelly Magistrate Judge

         Presently before the Court is Plaintiff LabMD, Inc.'s Motion to Compel Defendant Tiversa Holding Corp. to Produce Documents and Brief in Support (collectively referred to as the "Motion to Compel"). ECF Nos. 377 and 378. In the Motion to Compel, LabMD, Inc. ("LabMD") seeks to compel Defendant Tiversa Holding Corp. ("Tiversa") to produce certain documents. Tiversa opposes the Motion to Compel on the grounds that it is untimely because Tiversa provided the discovery responses at issue in October 2017, and because LabMD's document requests are irrelevant, over broad, unduly burdensome and are being used for an improper purpose. ECF No. 386.

         I. RELEVANT PROCEDURAL HISTORY

         In order to consider the Motion to Compel, it is essential to review it in the context of the relevant procedural history of this case.

         LabMD commenced this litigation on January 21, 2015. ECF No. 1. Following the litigation of two Motions to Dismiss that were granted in part and denied in part, ECF No. 115, on February 12, 2016, LabMD filed a First Amended Complaint. ECF No. 125. Another Motion to Dismiss was filed. ECF No. 137. On October 7, 2016, this Court issued a Report and Recommendation recommending that the Motion to Dismiss be granted as to Count II (as to Defamatory Statements 1-12, 14-15 and 17-20), Count III, Count IV, Count V and Count VI. It was further recommended that the Motion to Dismiss be denied as to Count II (as to Defamatory Statements 13 and 16). ECF No. 166. The Report and Recommendation was adopted by District Judge Mark Hornak. ECF No. 185.

         Following disposition of the Motions to Dismiss, only a portion of LabMD's defamation per se claim remains as to two alleged statements:

133. The following statements published by Tiversa and Boback in their February 10, 2015 statement to "The Pathology Blawg" are false and defamatory, were known by Boback and Tiversa to be false and defamatory, were understood by recipients of the statements to apply to LabMD, were intended to harm LabMD and did, in fact, cause special harm [to] LabMD: ...
• LabMD lawsuit - The claims are baseless and completely unsubstantiated .... even in the complaint itself. This appears to be another attempt by Daugherty to distract people from the INDISPUTABLE FACT that LabMD and Michael Daugherty leaked customer information on nearly 10, 000 patients. (Defamatory Statement No. 13).
his request ell33 (internal citations omitted).
135. The following statements made by Boback and Tiversa in a letter to the editor of the Wall Street Journal, published in the December 9, 2015 edition of the Journal, are false and defamatory, were known by Boback and Tiversa to be false and defamatory, were understood by recipients of the statements to apply to LabMD, were intended to harm LabMD and did, in fact, cause special harm [to] LabMD: . ..
• LabMD's CEO Michael Daugherty admits that a LabMD employee improperly installed LimeWire file-sharing software on a company computer. Doing so made confidential patient information publicly available over the Internet. (Defamatory Statement No. 16).

Id. ¶ 135.

         On August 29, 2017, the Court conducted the initial case management conference in this case. During the conference, the Court gave the parties 5 months to conduct discovery in light of the fact that all that remained of the 205 paragraph 10 count First Amended Complaint was a portion of the defamation per se claim as to two statements, identified above. The Court set a fact discovery period of August 29, 2017 to January 29, 2018. ECF Nos. 246 and 247.

         On September 5, 2017, LabMD served its First Request for Production of Documents and Things on Tiversa. ECF No. 378-13. On October 9, 2017, Tiversa provided its Objections and Responses to Plaintiff LabMD, Inc.'s Requests for .Production of Documents and Things. ECF No. 378-14.

         On October 12, 2017, the Court conducted a telephone status conference with counsel and addressed discovery, ESI custodians/search terms and an upcoming mediation. ECF No. 285. During the conference, LabMD did not raises any issues relative to the discovery responses that Tiversa had recently provided. Id. Shortly thereafter, LabMD and its CEO, Michael Daugherty ("Daugherty"), filed a new lawsuit with this Court against Tiversa and Robert Boback ("Boback"), and the individual attorneys and law firms representing them in the instant case in LabMD, Inc. and Michael Daugherty v. Tiversa Holding Corp., et al., No. 17-1365. In the new lawsuit, LabMD and Daugherty alleged that Defendants engaged in abuse of process, conspiracy to abuse process, and violations of Pennsylvania's Dragonetti Act. These claims arose out of purported misconduct by Tiversa and Boback in pursuing defamation claims against several parties, including LabMD and Daugherty, in two Pennsylvania state and federal court actions.[1] LabMD and Daugherty alleged that these defamation actions were procured, initiated, and continued in a grossly negligent manner and without probable cause, and that defendants had filed certain motions for purposes of concealing their own misconduct and harming LabMD.

         On October 24, 2017, Defendants filed a joint Motion to Stay the instant case so that they could have the opportunity to review the new lawsuit and decide the impact that it had on the ability of defense counsel and their law firms to continue to represent Tiversa and Boback. The stay was granted until a status conference with the Court on December 4, 2017. ECF No. 295.

         On December 4, 2017, the Court conducted a status conference. Discovery conducted to date was discussed. Attorney James Hawkins for LabMD acknowledged during the status conference the understanding that discovery was limited to Statement Nos. 13 and 16. ECF No. 311-2 at 10:9-16. Following the conference, the Court stayed this case pending rulings on the Motions to Dismiss in No. 17-1365. ECF No. 300.

         The Motions to Dismiss were granted in No. 17-1365 and the case was dismissed on November 6, 2018.[2]

         On February 7, 2019, this Court conducted a status conference to address the completion of discovery, including: search terms and custodians, the names of the individuals to be deposed, setting deposition dates as soon as possible, and the nonparty subpoena issues. ECF No. 324.

         Of note to the Motion to Compel, the Court specifically asked LabMD's counsel during the February 7, 2019 conference if there were any other discovery issues to address and Attorney James Hawkins said there were not. ECF No. 370 at 16. At no time did he raise any concern relative to Tiversa's responses to the request for production of documents produced in October 2017.[3]

         Throughout the February 7, 2019 conference, the Court addressed the requirements of proportionality and that discovery is to be limited to the remaining portions of the defamation per se claim as to Statement Nos. 13 and 16. ECF Nos. 370 at 8, 13, and 17. The Court also stated:

And again, I want to be clear, as you think about that after the ESI and the depositions, is I am going to be enforcing the amendments to the Federal Rules of Civil Procedure in terms of proportionality. This case has now been dramatically narrowed to just the two claims as to the two statements, and those are the only things that I'm going to allow discovery on, that which is related to it for purposes of preparing this case for trial.

Id. at 24.

         At the conclusion of the February 7, 2019 status conference, the Court scheduled fact discovery to close on June 1, 2019. ECF Nos. 324, 325 and 370 at 28.[4]

         Since the status conference, the Court has been required to deal with numerous discovery motions and discovery issues, including this Motion to Compel. ECF Nos. 329, 331, 332, 336, 337, 339, 341, 347, 349, 350, 351, 352, 353, 356, 361, 363, 364, 366, 371, 372, 374, 375, 377, 379, 381, 382, 388, 391, and 393.

         II. TIMELINESS OF ...


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