Univ. of Miss. Med. Ctr. v. Sullivan
Univ. of Miss. Med. Ctr. v. Sullivan
2021 WL 5414114 (S.D. Miss. 2021)
April 21, 2021
Greer, LaKeysha, United States Magistrate Judge
Summary
The Court ordered Dr. Sullivan to produce an external hard drive containing 19,000 emails or to produce all computers on which the external hard drive was connected to for a forensic examination. The Court also ordered the parties to agree upon a written protocol for the forensic examination of the devices and to provide the agreed protocol measures to the Court for approval. Additionally, the Court declined to compel production of an irrelevant email.
Additional Decisions
THE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER PLAINTIFF
v.
SPENCER K. SULLIVAN, M.D.; MISSISSIPPI CENTER FOR ADVANCED MEDICINE, P.C., LINNEA MCMILLAN; KATHRYN SUE STEVENS, and RACHEL HENDERSON HARRIS DEFENDANTS
v.
SPENCER K. SULLIVAN, M.D.; MISSISSIPPI CENTER FOR ADVANCED MEDICINE, P.C., LINNEA MCMILLAN; KATHRYN SUE STEVENS, and RACHEL HENDERSON HARRIS DEFENDANTS
CIVIL ACTION NO. 3:19-CV-00459-CWR-LGI
United States District Court, S.D. Mississippi, Northern Division
Filed April 21, 2021
Counsel
Phillip B. Abernethy, Benjamin McRae Watson, Caroline B. Smith, Paul N. Davis, Robert M. Frey, Robert V. Greenlee, Butler Snow LLP, Ridgeland, MS, for Plaintiff.Eric Todd Presnell, Pro Hac Vice, Bradley Arant Boult Cummings, LLP, Nashville, TN, Sheldon Givens Alston, Matthew W. Allen, Brunini, Grantham, Grower & Hewes, PLLC, E. Charlene Stimley Priester, Melvin V. Priester, Jr., Priester Law Firm, PLLC, Jackson, MS, for Defendants Spencer K. Sullivan, Mississippi Center for Advanced Medicine, P.C., Kathryn Sue Stevens.
Sheldon Givens Alston, Matthew W. Allen, Brunini, Grantham, Grower & Hewes, PLLC, E. Charlene Stimley Priester, Melvin V. Priester, Jr., Priester Law Firm, PLLC, Jackson, MS, Eric Todd Presnell, Bradley Arant Boult Cummings, LLP, Nashville, TN, for Defendant Linnea McMillan.
James W. Shelson, Phelps Dunbar, LLP, Jackson, MS, for Defendant Haddox Reid Eubanks Betts PLLC.
Greer, LaKeysha, United States Magistrate Judge
ORDER ON MOTION TO COMPEL
*1 This cause is before the Court on Plaintiff University of Mississippi Medical Center's (“UMMC”) Motion to Compel [152] filed against Defendants Spencer K. Sullivan, M.D. (“Dr. Sullivan”), Mississippi Center for Advanced Medicine, P.C. (“MCAM”), Linnea McMillan, and Sue Stevens (collectively referred to as “Defendants”) and non-party, subpoena recipient Jordan Robinson (“Mr. Robinson”). Having considered the briefing of the parties and all exhibits thereto, as well as the arguments of counsel presented to the Court at the telephonic hearing on March 15, 2021, the Court makes the following findings of fact and conclusions of law.
STANDARD
This discovery dispute concerns the scope of discovery and the procedure by which the parties may obtain discoverable information. This Court has broad discretion over both. See Hernandez v. Causey, 2020 WL 5412486, at *3 (S.D. Miss. Sept. 9, 2020) (quoting Freeman v. United States, 566 F.3d 326, 341 (5th Cir. 2009) ([i]t is well established that the scope of discovery is within the sound discretion of the trial court.”)); See also Saucier v. Lakeview Corp., 2014 WL 12906612, at *1 (S.D. Miss. Dec. 30, 2014) (“[a] district court has “broad discretion” to control the procedure for obtaining discoverable material.”).
Rule 26(b)(1) provides that information is within the scope of discovery if it is not privileged, relevant, and proportional to the needs of the case:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). Meanwhile, Rule 26(c) empowers the Court to control the procedure for obtaining discoverable information. Saucier, 2014 WL 12906612, at *1. Finally, Rule 37 provides that “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond” and it authorizes the Court to issue an Order compelling the production of such information. Fed. R. Civ. P. 37(a)(4).
ANALYSIS
A. The Court compels Dr. Sullivan to produce text messages exchanged with Mr. Robinson during specified time periods that relate to the transition to MCAM; the Court likewise compels Dr. Sullivan to submit the devices used in the exchange of the subject text messages for a forensic examination. The Court declines to compel Mr. Robinson to produce additional text messages or to submit his personal devices for a forensic examination.
UMMC has requested all written communications, including all text messages, exchanged between Dr. Sullivan and non-party Mr. Robinson from August 1, 2015 to the present, and has subpoenaed those same communications from Mr. Robinson. [ECF 152-11 & ECF 121-1] Defendants have produced some, but not all, of the text messages exchanged between Dr. Sullivan and Mr. Robinson. Defendants contend they have produced all the texts they were able to locate, but they did not perform a forensic examination of the phones.
*2 The Middle District of Louisiana has denied a motion to compel in which the plaintiff sought all text messages exchanged from defendant's personal phone between defendant and employees of the agency that defendant managed. Tingle v. Hebert, No. 15-626-JWD-EWD, 2017 U.S. Dist. LEXIS 88935, 2017 WL 2536584, at 4-5 (M.D. La. June 8, 2017); see also Dufrene v. Am. Tugs, Inc., No. 18-554 2018 U.S. Dist. LEXIS 207803 (E.D. La. Dec. 10, 2018) (“The implication of the individual parties' privacy interests in the data stored on their cell phones persuade[d] the Court to deny plaintiff's motion[.]”). The Magistrate Judge found that such a request was overbroad and not proportional to the needs of the case. Id. at 4. Rather, the court instructed that the request should be limited to text messages within a certain time period and only on specific topics relevant to the claims in the suit. Id. at 3. Additionally, in Hardy v. UPS Ground Freight, Inc., a Massachusetts district court denied a motion to compel seeking a forensic examination of plaintiff's personal cell phone on the grounds that such an examination threatened to sweep in plaintiff's private information and that the motion contained no proposed protocol “appropriately tailored to protect [plaintiff's] privacy concerns.” Hardy v. UPS Ground Freight, Inc., 2019 WL 3290346, at 3-4 (D. Mass. July 22, 2019).
However, in Schnatter, a Delaware Chancery Court addressed the production of emails and text messages from personal accounts and devices in a suit brought by the former founder, board member, and CEO of Papa John's Pizza, who was seeking text messages from other board members' private cell phones relating to his ouster after he made controversial statements about NFL players protesting the national anthem. Schnatter v. Papa John's Intern'l Inc., 2019 WL 194634, at *16 (Del. Ct. Chan. Jan. 15, 2019). The court noted that text messages often provide probative information and that if the parties used personal devices to communicate about ousting the founder “they should expect to provide that information” as requested. Id. The court recommended applying “discretion on a case-by-case basis to balance the need for the information sought against the burdens of production and the availability of the information from other sources[.]” Id. The Schnatter court further noted that
[t]he reality of today's world is that people communicate in many more ways than ever before, aided by technological advances that are convenient and efficient to use. Although some methods of communication (e.g., text messages) present greater challenges for collection and review than others, and thus may impose more expense on the company to produce, [ ] investigating [ ] would be undermined if the court categorically were to rule out the need to produce communications in these formats.
Id.
Federal Rule of Civil Procedure 26(b)(1) requires that discovery be “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Considerations include “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1); see also Hopkins v. Sumrall Holdings, No. 1:19-CV-418-HSO-JCG, 2020 LEXIS 62958 at *7 (S.D. Miss. Mar. 18, 2020).
Applying the proportionality factors in the instant matter, the Court finds that Dr. Sullivan should produce text messages exchanged with Mr. Robinson relating to the transition from UMMC to MCAM for the following time periods in which there appear to be gaps in what has been produced to date: July 7, 2016 to August 7, 2016; April 27, 2017 to November 14, 2017; November 16, 2017 through March 25, 2018; March 27, 2018 through May 22, 2018; May 24, 2018 through January 9, 2019; January 12, 2019 through May 13, 2019; and July 1, 2019 through May 20, 2020.
The Court further finds that UMMC should be allowed to conduct a limited forensic examination to search for the missing texts on Dr. Sullivan's electronic devices, which include text messages exchanged between Dr. Sullivan and Mr. Robinson relating to the transition from UMMC to MCAM for the following time periods in which there appear to be gaps in what has been produced to date: July 7, 2016 to August 7, 2016; April 27, 2017 to November 14, 2017; November 16, 2017 through March 25, 2018; March 27, 2018 through May 22, 2018; May 24, 2018 through January 9, 2019; January 12, 2019 through May 13, 2019; and July 1, 2019 through May 20, 2020.
*3 The Court finds, however, that Mr. Robinson shall not be compelled to produce additional text messages, nor shall Mr. Robinson's personal devices be subject to forensic examination. Mr. Robinson is not a party to the instant suit and there has been no showing that his personal devices are within the possession, custody or control of any party defendant.
The issue remains whether the forensic examination process will be performed in a manner that does not overly intrude into immaterial personal matters that could be contained on the devices and who will undertake the burden to perform the forensic examination of Dr. Sullivan's devices. To that end, UMMC has agreed to pay the reasonable costs associated with performing the forensic examinations and has also agreed to enter into a reasonable protocol which the third party independent forensic examiner will follow to avoid any intrusions outside the context of this case.
The Court orders the parties to agree upon a written protocol for the forensic examination of the devices, including the identification of the third party independent forensic examiner, and to then provide the agreed protocol measures to the Undersigned for approval within five (5) days of entry of this Order. The only application on Dr. Sullivan's devices that shall be accessed is the text message application. Upon receipt of the Undersigned's approval of the protocol, the parties shall follow the protocol to allow UMMC to conduct the forensic examinations. The Court further orders that adequate measures shall be put in place to safeguard defendant's unrelated, private and potentially privileged communications, as well as communications that fall outside the time periods specified in this Order.
B. The Court declines to compel the deposition of Smart Litigation Support, LLC and its principal Jeff Murphy.
UMMC has asked to depose Jeff Murphy and Smart Litigation Support, LLC to discover information within their personal knowledge about, among other things, the search for and extraction of ESI, including text messages, and the techniques and tools used to obtain those documents and the location where the documents were found. The Court declines to subject Mr. Murphy or Smart Litigation Support, LLC to deposition in this matter, as the Court views the role of Mr. Murphy and Smart Litigation Support, LLC as akin to that of a non-testifying consulting expert.
“A consulting expert who is hired not to testify at trial, but to extract information and gather ESI, is [ ] afforded a much higher degree of protection from discovery than an expert who is retained to testify at trial.” Viener v. Casano, No.: 1:16-cv-18-HSO-MTP, 2016, U.S. Dist. LEXIS 199721, at *3-4 (S.D. Miss. June 10, 2016). In the case of non-testifying consulting experts, such as Mr. Murphy and Smart Litigation Support, LLC,
[o]rdinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only: (i) as provided in Rule 35(b); or (ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
Fed. R. Civ. P. 26(b)(4)(D). A party seeking to show exceptional circumstances under Rule 26(b)(4)(D) carries a heavy burden. Bailey v. Bd. of Comm'rs of La. Stadium & Exposition Dist., No. 18-5888, 2019 U.S. Dist. LEXIS 183366, at *4 (E.D. La. Oct. 23, 2019); Bromeland v. Posthumus, 2009 U.S. Dist. LEXIS 141889, 2009 WL 10700074, at *1 (W.D. Tex. Jan. 29, 2009) (citing Hoover v. United States Dep't of the Interior, 611 F.2d 1132, 1142 n.13 (5th Cir. 1980)).
*4 “To establish ‘exceptional circumstances,’ a party requesting discovery ‘must show that (1) the object or condition observed by the non-testifying expert is no longer observable by an expert of the party seeking discovery; or (2) although it is possible to replicate expert discovery on a contested issue, the cost of doing so is judicially prohibitive.’ ” Viener v. Casano, U.S. Dist. LEXIS 199721 at *5 (quoting Fast Memory Erase, LLC v. Spansion, Inc., No. 3-08-CV-0977-M, 2009 WL 4884091 at *1 (N.D. Tex. Dec. 16, 2009)). The Fifth Circuit has upheld the importance of safeguarding “the fruits of an attorney's trial preparations from the discovery attempts of an opponent.” Shilds v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir. 1989).
Here, Plaintiff has not demonstrated exceptional circumstances to justify production from a non-testifying consulting expert. Plaintiff has failed to show that its case fits into one of the above exceptions to Rule 26(b)(4)(D) and has failed to persuade the Court that Mr. Murphy and Smart Litigation Support, LLC should be classified as anything but a non-testifying consulting expert.
C. The Court compels Dr. Sullivan and MCAM to produce all external hard drives used to store UMMC information, or alternatively, to allow forensic examination of Dr. Sullivan's desktop computer, limited to the copied contents of the external hard drive at issue.
Plaintiff alleges that Dr. Sullivan utilized an external hard drive to store his UMMC email box which contained approximately 19,000 emails. [ECF 152-19] Dr. Sullivan has not produced that external hard drive through discovery. Defendants assert that the hard drive “cannot be located” and that Dr. Sullivan “no longer has possession of it,” and that he “lost track of it,” or that “[i]t could be nothing more than he has simply forgotten with the passage of time.” [ECF 160 at 17-18.] The Court finds that the external hard drive is discoverable and hereby orders Dr. Sullivan to produce it within five days from entry of this Order.
Alternatively, if, and only if, the hard drive cannot be produced, the Court orders Dr. Sullivan to produce all computers on which the external hard drive at issue was connected to so UMMC may conduct a forensic examination of those devices to search for information relating to the hard drive at issue. The Court orders the parties to agree upon a written protocol for the forensic examination of the devices and to then provide the agreed protocol measures to the Undersigned for approval within five (5) days of entry of this Order. Upon receipt of the Undersigned's approval of the protocol, the parties shall follow the protocol to allow UMMC to conduct the forensic examinations at UMMC's expense. The Court further orders that adequate measures shall be put in place to safeguard defendant's unrelated, private and potentially privileged communications and documents, and that said forensic examination should be limited to the copied contents from the external hard drive at issue.
D. The Court declines to compel production of the October 3, 2016 email from Lisa Sullivan to Dr. Sullivan and Mr. Robinson, as the email is irrelevant to the claims and defenses at issue in this matter.
Defendants have withheld from production an October 3, 2016 email from Dr. Sullivan's wife, Lisa Sullivan, to Dr. Sullivan and Mr. Robinson on the basis of spousal privilege, work product, and relevance.
Because Mr. Robinson is also a recipient of the email, this breaks any spousal privilege that may have attached to it. See U.S. v. General Maritime Management (Portugal) L.D.A, 2008 WL 2810594, *3 (S.D. Tex. July 21, 2008) (citing United States v. Koehler, 790 F.2d 1256, 1258 (5th Cir. 1986) (“[t]he spousal communications privilege is waived by a spouse's disclosure of confidential communications to a third party.”)). Nor is the email attorney work product in prepared in anticipation of litigation. No attorney was involved in drafting or receiving this email and Defendants have not otherwise shown that it is work product.
*5 While the email dated October 3, 2016 from Lisa Sullivan to Dr. Sullivan and Mr. Robinson is not subject to the spousal or work product privileges, the Court conducted an in camera review of the email to determine its relevancy to the claims and defenses in this matter. Following in camera review, the Court declines to compel the production of the subject email on the grounds it is not relevant to the claims and defenses at issue, as required by Fed. R. Civ. P. 26(b)(1).
CONCLUSION
For the foregoing reasons this Court UMMC's Motion to Compel [152] is granted in part and denied in part. The Court ORDERS as follows:
(1) Dr. Sullivan shall produce text messages exchanged with Mr. Robinson that relate to the transition to MCAM during the specified time periods including July 7, 2016 to August 7, 2016; April 27, 2017 to November 14, 2017; November 16, 2017 through March 25, 2018; March 27, 2018 through May 22, 2018; May 24, 2018 through January 9, 2019; January 12, 2019 through May 13, 2019; and July 1, 2019 through May 20, 2020;
(2) Dr. Sullivan shall submit the devices used in the exchange of the subject text messages for a forensic examination.
(3) Jordan Robinson shall not be compelled to produce additional text messages or submit his personal devices for a forensic examination;
(4) Plaintiff shall not be permitted to depose Jeff Murphy and Smart Litigation Support, LLC;
(5) Dr. Sullivan and MCAM shall produce all external hard drives used to store UMMC information, or alternatively, to allow forensic examination of Dr. Sullivan's desktop computer, limited to the copied contents of the external hard drive at issue;
(6) The October 3, 2016 email from Lisa Sullivan to Jordan Robinson and Spencer Sullivan is not discoverable and shall not be produced.
SO ORDERED this the 21st day of April, 2021.