Camesi v. Univ. of Pittsburgh Med. Ctr.
Camesi v. Univ. of Pittsburgh Med. Ctr.
2017 WL 11463828 (W.D. Pa. 2017)
November 15, 2017

Bissoon, Cathy,  United States District Judge

Cost Recovery
Form of Production
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Summary
The Court found that the costs associated with TIFFing and TIFFing-plus-loading were similar, and ordered Defendants to supplement the record with any 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.
Additional Decisions
KAREN CAMESI, et al., Plaintiffs,
v.
UNIVERSITY OF PITTSBURGH MEDICAL CENTER, et al., Defendants
Civil Action No. 09-85J
United States District Court, W.D. Pennsylvania
Filed November 15, 2017

Counsel

J. Nelson Thomas, Jonathan W. Ferris, Pro Hac Vice, Guy A. Talia, Pro Hac Vice, Joseph M. Cianflone, Michael J. Lingle, Pro Hac Vice, Patrick J. Solomon, Pro Hac Vice, Justin M. Cordello, Thomas & Solomon LLP, Rochester, NY, for Plaintiff Karen Camesi.
J. Nelson Thomas, Jonathan W. Ferris, Pro Hac Vice, Joseph M. Cianflone, Justin M. Cordello, Thomas & Solomon LLP, Rochester, NY, for Plaintiffs Erin O'Connell, Lori Shaffer, Dinah Baker.
John J. Myers, Mariah L. Klinefelter, Mark A. Willard, Andrew T. Quesnelle, William S. Myers, Eckert Seamans Cherin & Mellott LLC, Wendy West Feinstein, Morgan, Lewis & Bockius LLP, Pittsburgh, PA, for Defendant University of Pittsburgh Medical Center.
John J. Myers, Mariah L. Klinefelter, Andrew T. Quesnelle, William S. Myers, Eckert Seamans Cherin & Mellott LLC, Wendy West Feinstein, Morgan, Lewis & Bockius LLP, Pittsburgh, PA, for Defendants UPMC, UPMC Health System, UPMC Bedford Memorial Hospital, UPMC Braddock, UPMC McKeesport, UPMC Northwest, UPMC Passavant, UPMC Presbyterian, UPMC Presbyterian Shadyside, UPMC Shadyside, UPMC Southside, UPMC St. Margaret, Magee Womens Hospital of UPMC, Montefiore Hospital, Montefiore University Hospital, Western Psychiatric Institute And Clinic, Children's Hospital of Pittsburgh of the UPMC Health System, UPMC Lee, UPMC Horizon, UPMC Holding Company, Inc., UPMC Health Network, Inc., Jeffrey A. Romoff, Gregory Peaslee, UPMC 401a Retirement Savings Plan, UPMC 403b Retirement Savings Plan, UPMC Basic Retirement Plan.
James F. Glunt, Reed Smith LLP, John J. Myers, Mariah L. Klinefelter, Andrew T. Quesnelle, William S. Myers, Eckert Seamans Cherin & Mellott LLC, Wendy West Feinstein, Morgan, Lewis & Bockius LLP, Pittsburgh, PA, for Defendant Mercy Hospital of Pittsburgh.
Bissoon, Cathy, United States District Judge

ORDER

*1 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.
 
These conclusions are bolstered by the broader context. Defendants retained their ESI-vendor, 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 pricing-structures.[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.
 
*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.

Footnotes
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.
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)).
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.
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.
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.