AARON HIRSCH, et al., Plaintiffs, v. USHEALTH ADVISORS, LLC, et al., Defendants Civil Action No. 4:18-cv-00245-P United States District Court, N.D. Texas, Fort Worth Division Filed March 12, 2020 Counsel Warren T. Burns, Daniel H. Charest, Burns Charest LLP, Dallas, TX, Arthur Stock, Lane L. Vines, Pro Hac Vice, Michael Dell'Angelo, Berger Montague PC, Philadelphia, PA, Jamshyd (Jim) M. Zadeh, Law Office of Jim Zadeh PC, Fort Worth, TX, Thomas Bick, Butzel Long, P.C., Max F. MacCoby, Pro Hac Vice, Washington, DC, for Plaintiffs. Daniel L. Bates, Decker Jones McMackin McClane Hall & Bates, Fort Worth, TX, Gregg Ian Strock, Pro Hac Vice, Greenspoon Marder LLP, Jeffrey A. Backman, Richard W. Epstein, Pro Hac Vice, Greenspoon Marder PA, Fort Lauderdale, FL, for Defendants. Pittman, Mark T., United States District Judge ORDER *1 Before the Court is Defendant USHEALTH Advisors, LLC's (“USHA,” and together with USHEALTH Group, Inc., “Defendants”) Objections to Magistrate Judge Cureton's February 14, 2020 Order (“Discovery Order”) (ECF No. 142) and Defendants' Motion to Stay Judge Cureton's February 14, 2020 Order, or, Alternatively, to Extend the Deadline to Comply With the Order (ECF No. 144). After reviewing the briefs and exhibits presented to the Magistrate Judge, the Discovery Order (ECF No. 137), Defendants' Objections and Motion to Stay and the responsive pleadings thereto, the Court hereby OVERRULES Defendants' Objections, AFFIRMS the Magistrate Judge's order, DENIES Defendants' Motion to Stay, and GRANTS in part Defendants' Motion to Extend the Deadline to Comply with the Magistrate's Order. BACKGROUND Plaintiff Aaron Hirsch (“Plaintiff” or “Hirsch”) filed this class action complaint against Defendants on March 29, 2018. He alleged that Defendants made phone calls to Plaintiff and others that were allegedly on Defendants' internal Do Not Call list (“IDNC”) and the National Do Not Call Registry (“NDNC”) in violation of the Telephone Consumer Protection Act and Maryland Telephone Consumer Protection Act. See Compl. at ¶¶ 22–44, ECF No. 1. The case was transferred to the undersigned on October 9, 2019. ECF No. 74. On October 24, 2019, USHA filed a Motion for Protective Order in response to subpoenas duces tecum that were served by Plaintiff on two nonparty vendors. ECF No. 79. Plaintiff filed a Response (ECF No. 93) and USHA filed a sealed Reply (ECF No. 98). On November 1, 2019, Plaintiff filed a Motion to Compel Production to produce documents responsive to Plaintiff's First Request for Production (“First RFP”) Nos. 7–9 and Plaintiff's Second Request for Production (“Second RFP”) Nos. 5 and 9–13. ECF No. 82. The First and Second RFPs generally sought to obtain USHA's phone calls related to NDNC and IDNC lists and communications between USHA and its vendors and agents concerning these phone calls and lists. See id. USHA filed a Response (ECF No. 102) and Plaintiff filed a Reply (ECF No. 112). Both the Motion for Protective Order and Motion to Compel were referred to United States Magistrate Judge Jeffrey L. Cureton.[1] ECF No. 101. *2 On January 15, 2020, Judge Cureton heard arguments from counsel on the motions, and he took the matters under advisement. ECF No. 119. On February 14, 2020, Judge Cureton issued an Order partially granting both motions. Discovery Order, ECF No. 137. Relevant here is that Judge Cureton overruled USHA's objections to Plaintiff's First RFP Nos. 7–9 and Plaintiff's Second RFP Nos. 5 and 10–13, ordered Defendants to search their own records, take reasonable steps to request responsive documents, and produce said responsive documents. See Discovery Order at pp. 7–16. On February 28, 2020, Defendants filed Objections to the Discovery Order (ECF No. 142) and a Motion to Stay Defendants' obligation to begin production under the Discovery Order (ECF No. 144). The Court granted Defendants' Motion for Leave to file a brief that exceeds the page limit. ECF No. 146. The Court then issued an order setting a briefing schedule and scheduling a 40-minute hearing on the Objections and Motion to Stay. ECF No. 147. Plaintiff filed a Response to the Motion to Stay (ECF No. 148) and Defendants filed a Reply (ECF No. 149). Plaintiff filed a Response to the Objections (ECF No. 150). On March 6, 2020, the parties appeared at a hearing where the undersigned heard arguments of counsel. ECF No. 152. Defendants' Objections and Motion to Stay are now ripe for review. LEGAL STANDARD This Court reviews a magistrate judge's decision on nondispositive matters pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, which provides that the court “shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law.” FED. R. CIV. P. 72(a). The clearly erroneous standard applies to the magistrate judge's factual determinations. Barrow v. Greenville Ind. Sch. Dist., 202 F.R.D. 480, 481 (N.D. Tex. 2001). “[T]he district court may not disturb a factual finding of the magistrate judge ‘unless, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed.’ ” Id. (quoting Smith v. Smith, 154 F.R.D. 661, 665 (N.D. Tex. 1994); RTC v. Sands, 151 F.R.D. 616, 618 (N.D. Tex. 1993) (Fitzwater, J.) (citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, (1985)). The Magistrate Judge's legal conclusions are reviewed de novo. Smith, 154 F.R.D. at 665. “[T]he abuse of discretion standard governs review of ‘that vast area of ... choice that remains to the [magistrate judge] who has properly applied the law to fact findings that are not clearly erroneous.” ’ Lahr v. Fulbright & Jaworski, L.L.P., 164 F.R.D. 204, 208 (N.D. Tex. 1996) (quoting Smith, 154 F.R.D. at 665). “An abuse of discretion exists when the court applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.” Cratty v. City of Allen Park, No. 17-11724, 2018 WL 3983806, at *1 (E.D. Mich. June 14, 2018) (citing First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641, 647 (6th Cir. 1993)). ANALYSIS Defendants make several general objections to the Discovery Order, including: that the Discovery Order does not discuss Judge Cureton's analysis under Rule 26; that the Discovery Order falsely characterizes Defendants' objections as “general, blanket, boilerplate, and unsupported”; that the Discovery Order's finding on Defendants' “privilege objections is demonstrably wrong”; that the Discovery Order has made discovery and maintenance of this case unmanageable for Defendants.[2] See Defs.' Obj., pp. 6–17. Defendants reiterated these general objections in separate sections specifically objecting to Plaintiff's First RFP Nos. 7–9 and Second RFP Nos. 10–13. See id. at 19–27. For the reasons set forth below, each of Defendants' objections should be overruled, and the Discovery Order should be affirmed. A. Magistrate Judge Cureton Engaged in a Proper Rule 26 Proportionality Analysis. *3 Defendants assert that the Magistrate Judge failed to analyze whether the discoverable matter responsive to Plaintiff's requests would be “both relevant and proportional to the needs of the case.” Defs.' Obj., p. 10, ECF No. 142. In support of that argument, Defendants suggest that the Discovery Order is “silent as to proportionality” and argue that the scope of the order exceeds what Defendants deem necessary for the case. Id. at 10–14. Specifically, Defendants offer the conclusory statement that “[w]hen all of the information provided by the parties is considered, it is evident that the [Discovery] Order should be modified to limit the scope of discovery to the Hurricane lead campaign.” Id. at 14. However, Defendants ignore the clear language of the Discovery Order which states that the Magistrate Judge “carefully considered the motions, responses, replies, and arguments presented at the hearing on January 15, 2020,” and ultimately found that Plaintiff's requests are “sufficiently tailored to obtain relevant discovery as the Amended Complaint contains allegations relating to Plaintiff and alleged classes of people that received two or more calls by Defendants on their residential or cellular telephone numbers that had been registered on the NDNC and IDNC lists.” Discovery Order, pp. 1, 8–11, 13–16. ECF No. 137. In fact, the Magistrate Judge considered the same argument Defendants are now reiterating in their objections, as evidenced by the inclusion of the following language in the Discovery Order: “[Defendants'] merit-based objections are not a basis to prevent discovery at this time, and [Defendants] cannot unilaterally decide to limit discovery requests based on what [Defendants] believe[ ] is relevant.” Id. at 16. Moreover, Defendants do not present any authority, and this Court is not aware of any authority, requiring the Judge to make specific findings or engage in lengthy discussion concerning its Rule 26 proportionality analysis. Defs.' Obj., pp. 10–14, ECF No. 142. Accordingly, Defendants have failed to establish that the Magistrate Judge failed to consider Defendants' evidence or arguments, or properly analyze relevance and proportionality in determining the appropriate scope of discovery. This objection is OVERRULED. B. Many of Defendants' objections are “general, blanket, boilerplate, and unsupported.” Defendants claim that the Discovery Order's characterization of certain of Defendants' objections as “general, blanket, boilerplate, and unsupported” is “clearly erroneous and an abuse of discretion.” Defs.' Obj. at 15, ECF No. 142. Asserting the same basic arguments as before concerning the scope of discovery and the burden of responding to Plaintiff's requests, Defendants claim that the “[Discovery] Order seems to disregard [Defendants'] objections” and “does not appear to have considered [Defendants' proffered evidence] at all.” Defs.' Obj. at 14–15, ECF No. 142. Essentially, Defendants offer only conclusory assertions that the Magistrate Judge failed to consider evidence premised entirely on the fact that Defendants' disagree with the outcome of the Discovery Order. After reviewing the Discovery Order and the evidence and arguments the parties presented to the Magistrate Judge, this Court finds that many of Defendants' objections are indeed formulaic recitations of identical objections and/or direct references to the entirety of prior objections. See Pl.'s App. to Mot. to Compel, pp. 24–26, ECF No. 86. Therefore, the Discovery Order was not “clearly erroneous” for finding that these objections were “general, blanket, boilerplate, and unsupported,” and such objections are properly given less weight or disregarded entirely. This objection is OVERRULED. C. The Discovery Order's finding on Defendants' privilege assertion was not clearly erroneous. *4 Defendants' objections assert, for the first time, that the parties formed an oral agreement that neither side would require the other to keep a privilege log for post-litigation attorney-client communication and work-product privilege. Defendants did not raise the existence of any such agreement to the Magistrate Judge prior to entry of the Discovery Order, nor do Defendants' objections explain or even comment upon that glaring omission from its prior briefing. Defendants' failure to rely upon their alleged agreement with Plaintiff until after the Magistrate Judge entered the Discovery Order not only casts doubt on the legitimacy and enforceability of any such agreement, but it also neuters Defendants' argument that the Discovery Order is “clearly erroneous.”[3] See e.g., Ernst v. Sunbelt Rentals, Inc., 122 F. App'x 722, 723–24 (5th Cir. 2004) (declining to review lower court for abuse of discretion when the argument was not presented to the lower court). Moreover, as the cases relied upon by Defendants in their objections demonstrate, judges have discretion to allow parties to deviate from the strictures of traditional privilege log requirements. See e.g., Benson v. Rosenthal, No. CV 15-782, 2016 WL 1046126, at *10–11 (E.D. La. Mar. 16, 2016). However, no such deviation is mandated by law, and it is far from “clearly erroneous” to enforce the plain language of Rule 26(b)(5). See e.g., Nance v. Thompson Med. Co., 173 F.R.D. 178, 182 (E.D. Tex. 1997); see also FED. R. CIV. P. 26(b)(5), Advisory Committee Notes (1993 Amend.) (“To withhold materials without such notice is contrary to the rule ... and may be viewed as a waiver of the privilege or protection.”). Indeed, the factual allegations in this case are particularly ill-fitted for allowing Defendants to avoid their obligation to log post-litigation privileged information because 11 of the 14 alleged calls and texts that Defendants made to Plaintiff forming the basis of this lawsuit occurred after Plaintiff filed suit. App. in Support of Pl.'s Resp. to Defs.' Obj., pp. 18-19, ECF No. 151. Accordingly, the Magistrate Judge did not abuse his discretion in overruling Defendants' objections based on work-product and attorney-client privilege. This objection is OVERRULED. D. The Discovery Order has not made discovery and maintenance of this case unmanageable for Defendants. Defendants complain that the Discovery Order “fails to consider the practicalities in requiring” Defendants to request discoverable information from their agents, and “ignored the unrebutted evidence provided by [Defendants] as to both [the] burden and the inability to control” their agents. Defs.' Obj., p. 21, ECF No. 142. Defendants suggest that this conclusion is self-evident by discussing some of the onerous discovery tasks they claim are required by the Discovery Order. Id. at 21–23. Defendants' objections are misplaced. In the end, Defendants' objections largely reassert the same scope and burden arguments previously made to the Magistrate Judge. Id. As before, Defendants have not demonstrated that the Magistrate Judge failed to consider their evidence or arguments. *5 The Discovery Order instructs Defendants “to search [their] own records and request documents from independent insurance agents that [Defendants] ha[ve] entered into an Advisors Agent Agreement with and take all reasonable efforts to obtain any responsive documents that comply with Plaintiff's request.” Discovery Order, pp. 8–11, 13–16, ECF No. 137. The number of agents with which Defendants have entered into an “Advisors Agent Agreement” has consistently grown throughout this protracted and contentious discovery dispute. Initially, Defendants claimed the number of agents to be 3,500 at any one time and 9,000 over the past six years. However, after entry of the Discovery Order, Defendants argued for the first time in their objections that the number of agents actually exceeds 19,000. Defs.' Obj., pp. 2, 10. First, the Court notes that Defendants did not present the current estimate of over 19,000 agents to the Magistrate Judge, and it therefore has no bearing on whether the Magistrate Judge failed to consider facts or misapplied law to the facts. Second, even if Defendants had presented evidence that there are over 19,000 agents instead of the 9,000-figure presented to the Magistrate Judge, the Discovery Order would still not be “clearly erroneous.” The evidence presented to the Magistrate Judge prior to entry of the Discovery Order demonstrates that the Advisors Agent Agreement creates an ownership interest for Defendants as to certain discoverable information that is in the possession of Defendants' agents, and that Defendants have a continuing contractual right to request that information from its agents. Defendants do not dispute that they have refused to exercise that contractual right to request any information from their agents. The fact that Defendants have not maintained a streamlined mechanism for communicating with their agents or categorized their information technology systems to allow content to be easily searched does not relieve Defendants of their obligation to respond to valid discovery requests. As this Court has previously stated, “The failure or inadequacy of the [resisting party's] system does not excuse the [resisting party's] compliance with its discovery obligations.” Thomas v. Fin. Corp. of Am., No. 3:19-CV-152-E, 2019 WL 5157022, at *2 (N.D. Tex. Oct. 10, 2019). Because the Discovery Order merely requires Defendants to engage in reasonable efforts to gather responsive discoverable material and produce it to Plaintiffs, it is not an abuse of discretion. This objection is OVERRULED. E. Defendants Must Begin Production in Compliance with the Discovery Order on March 13, 2020 and Substantially Complete Said Production by May 8, 2020. Although the Court overrules Defendants' Objections and denies the Motion to Stay, in light of Defendants' allegations concerning the burdens of production, the Court believes that rolling production beginning on March 13, 2020, with substantial completion done by May 8, 2020, is appropriate. Therefore, Defendants shall produce responsive documents in four rounds or phases. The first round of production shall begin on March 13, 2020 and shall include documents responsive to Plaintiff's First RFP Nos. 7–9. The second round of production shall begin on April 3, 2020 and shall include documents responsive to Plaintiff's Second RFP No. 5. The third round of production shall begin on April 17, 2020 and shall include documents responsive to Plaintiff's Second RFP Nos. 10–11. And the fourth round of production shall begin on May 1, 2020 and shall include documents responsive to Plaintiff's Second RFP Nos. 12–13. By May 8, 2020, production under the Discovery Order shall be substantially complete. In permitting Defendants to produce beyond the current April 24, 2020 deadline for fact discovery (Am. Sched. Order, ECF No. 121), this order should not be construed to extend any other discovery matters beyond April 24, 2020. Should responsive documents produced beyond the April 24, 2020 deadline present the need for additional discovery, the parties shall first seek to resolve those issues amongst themselves pursuant to Dondi, the Texas Lawyers' Creed, and counsels' professional obligations. CONCLUSION Based on the foregoing, Defendants' Objections are OVERRULED and Defendants' Motion to Stay is DENIED. *6 Defendants are ORDERED to begin producing documents responsive to Judge Cureton's Order as follows: March 13, 2020 – First Round of Production; April 3, 2020 – Second Round of Production; April 17, 2020 – Third Round of Production; May 1, 2020 – Fourth Round of Production; May 8, 2020 – Substantial completeness pursuant to Discovery Order. SO ORDERED on this 12th day of March, 2020. Footnotes [1] The Court notes that in addition to the two motions at issue, Judge Cureton had already been referred and resolved prior motions to compel (ECF No. 31) and for protective order (ECF No. 50). See ECF Nos. 39 & 61. Thus, as of the date of this order, Judge Cureton has now conducted two hearings and reviewed four motions in this lawsuit, all involving discovery disputes. Thus, the Court is satisfied that Judge Cureton has thoroughly reviewed and familiarized himself with the discovery issues Defendants now complain about in their Objections. Indeed, the Court further notes that Judge Cureton's experience and familiarity with the discovery disputes in this case will only continue to increase as USHA has now filed a Motion to Compel (ECF No. 114), which the Court has referred to Judge Cureton. ECF No. 116. [2] Defendants also argue that the Magistrate Judge's ruling on the motion to compel is in direct contradiction with the ruling on the motion for protective order and is therefore clearly erroneous. Id. The Court disagrees. The clear distinction between the discovery requests that the Discovery Order addressed under Defendants' Motion for Protection (ECF No. 79) and Plaintiff's Motion to Compel (ECF No. 82) is that the former concerned discovery from third parties, whereas the latter concerned discovery from a party to this litigation. “While [status as a third party] does not relieve [a third party] of its obligations either to respond to proper discovery requests or to comply with the applicable rules, it does entitle [a third party] to consideration regarding expense and inconvenience.” MetroPCS v. Thomas, 327 F.R.D. 600, 610 (N.D. Tex. 2018) (quoting Semtek Int'l, Inc. v. Merkuriy Ltd., No. 3607 DRH, 1996 WL 238538, at *2 (N.D.N.Y. May 1, 1996)); see also Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004); Williams v. City of Dallas, 178 F.R.D. 103, 109 (N.D. Tex. 1998). This distinction accounts for the alleged inconsistency that Defendants claim is a fatal flaw in the Discovery Order. In addition, the Court notes that Defendants cited no case law to support their position. [3] Defendants included emails exchanged between counsel for the parties in their Appendix to Defendants' Brief in Opposition to Plaintiff's Motion to Compel Production of Documents. App. in Support of Defs.' Resp. to Pl.'s Mot. to Compel, pp. 32-34, 40-51, 61-65, ECF No. 102. While Defendants may claim these emails contain evidence of the parties' alleged agreement to relieve each other of the obligation to log post-litigation work-product and attorney-client communications, Defendants failed to argue the existence of that agreement to the Magistrate Judge or reference those emails for that purpose in any briefing prior to their objection to the Discovery Order. “The court is not obligated to scour or sift through the record to find evidence in support of a party's position,” especially when that party has not even argued the position. Weems v. Dallas Indep. Sch. Dist., 260 F. Supp. 3d 719, 731 (N.D. Tex. 2017); see also Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).