Profit Point Tax Techs., Inc. v. DPAD Grp., LLP
Profit Point Tax Techs., Inc. v. DPAD Grp., LLP
2021 WL 7966874 (W.D. Pa. 2021)
October 6, 2021

Stickman IV, William S.,  United States District Judge

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Summary
The Court modified its April 22, 2021 Order to require Defendants to produce all files located on their devices in unprocessed native format. Within seven days, Defendants must engage either Bit-x-Bit or the Reed Smith LLP's E-Discovery Team to review the data for responsive documents and produce them with a Declaration explaining the search process.
Additional Decisions
PROFIT POINT TAX TECHNOLOGIES, INC., Plaintiff,
v.
DPAD GROUP, LLP, JOHN MANNING, and DANIEL STEELE, Defendants
Civil Action No. 2:19-cv-698
United States District Court, W.D. Pennsylvania
Filed October 06, 2021

Counsel

David B. Willis, Pro Hac Vice, Manning Gross & Massenburg LLP, Boston, MA, Robert J. Hannen, Clark Hill PLC, Pittsburgh, PA, Jeffrey Joseph Lorek, Clark Hill PLC, Washington, DC, for Plaintiff.
Brad A. Funari, Alex Mahfood, Reed Smith LLP, Pittsburgh, PA, for Defendants.
Stickman IV, William S., United States District Judge

ORDER OF COURT

*1 Before the Court are the parties’ dueling Motions to Modify (ECF Nos. 224 and 225) its previous orders governing the search of Defendants’ electronic devices as a discovery sanction. The history of the ongoing dispute between the parties regarding discovery obligations and, specifically, the conduct of an examination of Defendants’ electronic files for material responsive to Plaintiff's discovery requests is well known to the parties and the Court, is well-documented on the substantial docket in this matter and need not be recounted here. Forensic examiner Dan Roffman of Charles River Associates has worked with the parties to collect and image the electronic data stored on Defendants’ devices, to search that data for the GTM documents and the Boston documents, and to use Court-approved search terms to locate documents that may be responsive to Plaintiffs’ discovery requests. Mr. Roffman has performed his tasks well. He has located and provided to the Court and the parties both the GTM documents and the Boston documents. He has also run the Court-approved search terms against all of the data imaged from Defendants’ devices.

 

The issue now before the Court relates to the review of Defendants’ data against the search terms previously approved by the Court. A search using those terms revealed that over 99% of files on Defendants’ devices were responsive (to those terms). This unequivocally shows that the Court-approved search terms, which appeared reasonable on paper, were far too broad when actually applied to the universe of electronic data in this case. The parties have met and conferred with each other and with the Court about narrowing the search terms and have reached an impasse. Plaintiff seeks to apply a narrower list of terms to the data. Defendants contend that that list will still lead to an overly broad designation of material as responsive. Rather than a back-and-forth over formulating a new list of approved search terms, Defendants have offered an alternative plan—that Mr. Roffman produce to Defendants (through counsel) all of the data imaged from their devices and that Defendants use an e-discovery vendor (either Bit-x-Bit or the Reed Smith LLP E-Discovery Team) to review those files for documents responsive to Plaintiff's discovery requests. All responsive documents will be produced. Any documents withheld on the grounds of privilege will be identified on a privilege log provided to Plaintiff's counsel.

 

At this stage in this litigation with this ongoing issue with discovery, the Court finds that Defendants’ proposal—with certain modifications—is reasonable. Therefore, this 6th day of October 2021, IT IS HEREBY ORDERED that Defendants/Counter-Plaintiffs’ Motion to Modify Order (ECF No. 225) is GRANTED IN PART and Plaintiff/Counterclaim Defendant's Motion to Modify (ECF No. 224) is DENIED.

 

The Court's April 22, 2021, Order adopting Special Master Betts’ Report and Recommendation and Ordering the review of Defendants’ devices specifically envisioned that Defendants’ counsel would play a role in reviewing the documents located by the forensic examiner. (ECF No. 187). It stated in pertinent part,
*2 4. The results of the search and electronic copies of the documents responsive to the search terms will be provided to Defendants’ counsel.
5. Within twenty-one (21) days thereafter, Defendants are directed to review the search terms provided by the independent expert and identify all documents responsive to PPTT's Requests for Production of Documents (subject to the limitations recognized in ECF Nos. 69 and 83) and to produce all responsive documents to PPTT, except for any documents withheld on the grounds of privilege. Any withheld documents are to be identified on a privilege log provided to PPTT's counsel.
(ECF No. 187, p. 3). The only issue now, relative to the latest impasse between the parties, is whether the parties must continue to work toward a narrower and more reasonable list of search terms for Mr. Roffman to run in order to produce a subset of documents to turn over to Defendants, or whether all of the data from Defendants’ device will be produced to Defendants and they can begin running searches themselves to locate documents responsive to the discovery requests. The Court holds that Defendants’ position will avoid the inefficiencies of time and expense relative to formulating narrower search terms for Mr. Roffman, a third party, to review—only to ultimately turn the documents over to Defendants for their own review against the discovery requests and for privilege.

 

Accordingly, the Court hereby modifies its April 22, 2021 Order to provide as follows:
a) Charles River Associates shall provide to Defendants’ counsel the electronic image of all files located on Defendants’ devices. The data is to be produced in unprocessed native format;
b) Within seven (7) days of the production of the data to Defendants’ counsel, Defendants shall engage either Bit-x-Bit or the Reed Smith LLP's E-Discovery Team and begin reviewing the data for responsive documents as directed by Paragraph 5 of the Court's April 22, 2021, Order;
c) Defendants shall produce responsive documents as directed by Paragraph 5 of the Court's April 22, 2021, Order;
d) Along with the documents and privilege log produced by Defendants, the individual from Bit-x-Bit or the Reed Smith LLP E-Discovery Team responsible for supervising the review shall produce a Declaration explaining the search process utilized, including the search terms used to undertake the search, and averring that the review complied with all requirements mandated by law, the Federal Rules of Civil Procedure, and standard practices in conducting e-Discovery.