United States District Court, W.D. Pennsylvania
Maureen P. Kelly Magistrate Judge
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.
RELEVANT PROCEDURAL HISTORY
order to consider the Motion to Compel, it is essential to
review it in the context of the relevant procedural history
of this case.
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.
disposition of the Motions to Dismiss, only a portion of
LabMD's defamation per se claim remains as to two alleged
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 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.
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.
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.
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. 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.
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.
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.
Motions to Dismiss were granted in No. 17-1365 and the case
was dismissed on November 6, 2018.
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.
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.
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.
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.
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,
TIMELINESS OF ...