*1 Contour Data Solutions has objected to the May 13, 2021, report and recommended order of Special Master Aliza Karetnick that the Court apportion the Special Discovery Master fees and costs for the month of April, totaling $23,472.94, as follows: (1) $19,081.47 to Contour; and (2) $4,391.47 to Gridforce Energy Management, LLC.[1]

The Court appointed the Special Master because the parties' intransigent approaches to discovery have plagued this case from the start. As stated at the June 3, 2021, status conference, the Court is “very concerned about the breakdown in the system that the Court is trying to keep in place because this case will go nowhere if you can't get through discovery.”[2]

The dispute that led to the recommended fee allocation arose from Contour's decision to completely shut down the SecureReview document review process, contending that Gridforce had accessed the source code produced in discovery without express written permission from Contour. The June 3, 2021 status conference established that the law firm representing Contour had provided Gridforce's counsel with the link and the password to access the data, and that Contour, through its counsel, had acted precipitately in ending access when reasonable alternative actions were available.[3]

Counsel for Contour, M. Kelly Tillery, Esquire, contended that his actions were directly related to protecting his clients from possible trade secret violations.[4] However, Mr. Tillery's unilateral actions seriously disrupted the exchange of discovery needed for the preliminary injunction hearing scheduled for June 15 and 16, 2021, and nearly derailed a hearing that had already been significantly delayed. Counsel improperly acted unilaterally despite the fact that the Court and the Special Master have implemented processes for bringing discovery disputes to the Court's attention, even those occurring by mistake.[5] If there was mistaken access granted to SecureReview as Mr. Tillery insisted, that mistake was the responsibility of Mr. Tillery, because it was his own office that sent Gridforce's counsel an email providing the SecureReview password: “the source code has been produced and made available for review on the SecureReview platform ... And you have -- and she gave the password.”[6] Counsel could have attempted to meet and confer as to any inadvertent disclosure as set forth in the Federal Rules of Civil Procedure and in accordance with the parties' stipulated protective order. Further, when the issue was presented to Special Master Karetnick, Contour disregarded the guidelines in place for raising disputes, and chose to instead raise a number of “rapid-fire” disputes that lacked merit and multiplied the proceedings.[7]

*2 The Court agrees with Special Master Karetnick that Contour's actions disrupted the flow of discovery in this instance, and that the proposed allocation is reasonable under the circumstances.[8] Special Master Karetnick reported that “unless there was an allocation other than the 50/50 split required by order, that this kind of conduct would continue and that the plaintiff would continue to see Rule 34 discovery as discovery that it could turn off at a moment's notice or that it could withhold on a moment's notice or that it didn't need to meet and confer and that the disputes would escalate without any sort of control or scaffolding around them.”[9]

Obstruction of discovery will not be tolerated by the Court. The parties shall meet and confer to resolve issues of this nature moving forward and shall follow the established informal briefing rules the Special Master has implemented. The fee allocation is based on the recommendation of the Special Master as well as the Court's own findings after hearing from the parties.[10] The parties and counsel are on notice that any further obstruction of the discovery process will warrant the apportionment of fees accordingly and may result in appropriate sanctions.

AND NOW, this 29th day of June 2021, upon consideration of the application for fees and costs incurred by Special Discovery Master Aliza Karetnick for the month of April which was submitted to the Court and Counsel pursuant to the appointment order [Doc. No. 85], and finding that the work, fees and costs reflected thereon are “reasonably necessary” for the fulfillment of the Special Discovery Master's duties, and the objections from counsel hereto, it is hereby ORDERED that the application for fees and costs is APPROVED in full in the amount of $23,472.94.

IT IS FURTHER ORDERED that Plaintiff's objections are OVERRULED and the Special Master's Report and Recommended Order #1 [Doc. No. 107] is ADOPTED with regard to the allocation of the fees of $19,081.47 to Contour and $4,391.47 to Gridforce Energy Management, LLC. Plaintiff and Defendants shall each make payment directly to the Special Discovery Master.

It is so ORDERED.

BY THE COURT: