*1 Before the undersigned Magistrate Judge, on reference from the District Court, is a motion to modify and/or alter orders [doc. # 344] filed by Plaintiffs/Counter-Defendants Ocean Sky International, Inc. and Suni Enterprises, Inc., plus Counter-Defendants Shannon Pardue and Rachette Pardue (collectively “Plaintiffs” or “Ocean Sky”) and a motion for leave to supplement the motion to modify and/or alter orders [doc. #359]. The motions are opposed. [doc. # 346]; see also [doc. #359, p. 2]. For reasons assigned below, the motion to supplement is DENIED, and the motion to modify and/or alter orders is GRANTED IN PART and DENIED IN PART.[1]

The parties and the court are well-acquainted with this case's history, and consequently, the court's recitation of background information will be limited to the circumstances pertaining to the parties' latest dispute. On July 31, 2020, Ocean Sky International, Inc. (alone) filed a motion for sanctions for witness tampering [doc. # 196] against Defendant Gary Raser as a result of his 1) sending crass and inappropriate text(s) to a former LIMU distributer who also was a close relative of the members of the Plaintiff-entities and an anticipated witness in this matter; and 2) for contacting another LIMU promoter in an alleged attempt to influence his testimony. On September 11, 2020, Magistrate Judge Hayes GRANTED IN PART Ocean Sky's motion and ordered, inter alia, that

(Sept. 11, 2020 Mem. Order [doc. # 210]).[2]

On November 19, 2020, Defendant, Raser, filed a motion for a status conference and an associated request for expedited consideration [doc. # 246], to resolve a dispute between the parties regarding the methodology for extraction of the data from the phone pursuant to the court's September 11, 2020, Order. The next day, Plaintiffs filed a response to the motion wherein they asserted, amongst other things, that they believed there existed a significant number of text messages between Raser and his other corporate officers regarding Ocean Sky's termination, but barely any text messages with these individuals had been produced. (Pl. Resp. [doc. # 252]). Accordingly, Plaintiffs asked the court to allow a search of the entire phone using the standalone and Boolean search terms. Id. On November 23, 2020, Raser filed a reply brief whereby he asserted that he had complied with his discovery obligations and had not withheld any text communications. (Raser Reply [doc. # 254]).

*2 On November 24, 2020, Magistrate Judge Hayes held a status conference with the parties and ordered them:

(Minutes [doc. # 256]).[3]

On December 10, 2020, Magistrate Judge Hayes resolved yet another disagreement regarding the imaging of Gary Raser's cell phone and extraction of certain text messages by allowing Plaintiffs to include an additional sixteen terms to the search and extraction process. (Dec. 10, 2020, Order [doc. # 266]).

Thereafter, the parties ultimately agreed to use a company named Digital Forensics to perform the extraction of text messages from Raser's cell phone. By February 2021, Digital Forensics had produced a report (the “Extraction Report”) that contained at least 287 communications between Gary Raser and other LIMU promoters related to the Pardues. According to Plaintiffs, the Extraction Report contained text messages that were responsive to discovery, but that were never produced. Plaintiffs subsequently deposed Digital Forensics on August 24, 2021, whereupon they confirmed that Raser had violated his discovery obligations by withholding text messages between himself and other promoters.

In light of this post-sanctions order(s) evidence indicating that Raser withheld responsive text messages between himself and other promoters, Plaintiffs filed the instant motion on September 8, 2021, to modify and/or alter the court's orders pertaining to the search of Raser's cell phone to include communications between Raser and LIMU's corporate officers, as well as al communications between Raser and Plaintiffs' principals, i.e., Shannon Pardue, Rachette Pardue, and Tommy Liles.

On September 23, 2021, Defendants, The Limu Company (“LIMU”) and Raser (collectively, “Defendants”) filed a joint opposition to Plaintiffs' motion to modify and/or alter court orders. (Defs. Opp. Memo. [doc. # 346]). Defendants argued that Plaintiffs' requested relief was unrelated to the initial motion for sanctions, and that there were no changed facts that would justify expanding the court's order that had been limited to texts from “third-party promoters,” to include phone numbers with LIMU executives or employees. Defendants emphasized that their responses to Plaintiffs' discovery requests were not part of Plaintiffs' motion for sanctions. Furthermore, out of the 287 extracted text messages, Plaintiffs had identified only eleven to support their motion.

According to Defendants, the highlighted text messages do not demonstrate anything improper. They maintain that there is nothing to suggest that responsive text messages were withheld. Rather, Defendants, as with past discovery disputes, characterized Plaintiff's evidence as nothing more than “innuendo.” Defendants stressed that, if Plaintiffs believed that there were additional text messages that should have been produced, they should have initiated a “meet and confer” to resolve the issue and then filed a motion to compel, rather than the instant motion to modify a sanctions order. Finally, Defendants asked the court to award them costs that they incurred in responding to Plaintiff's baseless motion(s), “particularly one that misrepresents the facts of this dispute.” (Defs. Opp. Memo., pg. 13).

*3 On September 29, 2021, Plaintiffs filed their reply brief. (Pl. Reply [doc. # 347]).

On October 26, 2021, Plaintiffs filed the instant motion to supplement [doc. #350], which they indicated is opposed by Defendants.

First, it is within the discretion of the court to grant or deny a motion to supplement. Prior to the filing of Plaintiffs' motion to supplement, the motion to modify and/or alter orders was fully briefed, and the undersigned was prepared to rule. However, the undersigned has reviewed the pending motion and considered it, as well the fact that the motion is opposed. Ultimately, even if the motion to supplement were granted, it would not change the court's analysis or the relief accorded. Additionally, the arguments contained therein are part and parcel of the pending motion for termination sanctions before Judge Doughty, the judge who will preside over the bench trial in this case. Thus, Plaintiffs have and will have (in reply) the opportunity to present any arguments they wish on these issues to Judge Doughty. Therefore, the motion to supplement is DENIED.

The court now turns to the motion to modify and/or alter orders. The Federal Rules of Civil Procedure do not recognize a “ ‘motion for reconsideration’ in haec verba.” Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir.1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir.1994). Nonetheless, “Rule 54(b) allows parties to seek reconsideration of interlocutory orders and authorizes the district court to ‘revise[ ] at any time’ ‘any order or other decision ... [that] does not end the action’ ...” Austin v. Kroger Texas, L.P., 864 F.3d 326, 336 (5th Cir. 2017) (citing FED. R. CIV. P. 54(b)).

Under Rule 54(b), “the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.” Id. (quoting Lavespere, 910 F.2d at 185). Nonetheless, courts often evaluate motions to reconsider interlocutory orders by looking to considerations that support modification of final judgements under Rule 59(e) such as whether there are “manifest errors of law or fact upon which judgment is based[,]” whether “new evidence” is available, whether there is a need “to prevent manifest injustice,” or whether there has been “an intervening change in controlling law.” See Miller Pharmacy Servs., LLC v. AmerisourceBergen Drug Corp., Civ. Action No. 21-00207, 2021 WL 2627452, at *2 (W.D. La. Mar. 30, 2021) (citations omitted).

Furthermore, when, as here, a case is reassigned to another judge, “[t]he successor judge has the same discretion as the first judge to reconsider [the first judge's] order.” Stoffels ex rel. SBC Tel. Concession Plan v. SBC Commc'ns, Inc., 677 F.3d 720, 728 (5th Cir. 2012) (citation omitted). “In exercising this discretion, successor judges should, in accordance with values of comity and predictability, carefully and respectfully consider the conclusions of prior judges before deciding to overturn them.” Id. (citation omitted). Toward that end, the successor judge “should not overrule the earlier judge's order or judgment merely because the later judge might have decided matters differently.” United States v. O'Keefe, 128 F.3d 885, 891 (5th Cir. 1997) (citation omitted).

*4 Applying the foregoing considerations here, the court observes that the Extraction Report provides evidence that Defendants neglected to produce at least some responsive texts from Raser's cell phone in the course of normal discovery. While it is not apparent that the discovery omissions were intentional or necessarily material, it does show that Defendants' processes for self-identifying and producing responsive texts from Raser's cell phone were imperfect.

The court appreciates Defendants' argument that the remedy of an expanded cell phone search does not immediately or naturally follow as a sanction for Raser's improper communications with an opposing party witness. It is worth recalling, however, the court's prior finding that

(Sept. 11, 2020, Mem. Order, pgs. 6-7 [doc. # 210]).

Certainly, if the court had been aware that Raser had failed or neglected to produce responsive texts regarding communications with LIMU's corporate officers at the time of the sanctions ruling, it is not a stretch to conclude that, given Raser's conduct, the court would have approved an expanded search. Regardless, the undersigned finds that the new evidence supports an expanded search of the cell phone to include Raser's communications with LIMU's corporate officers as a sanction for Raser's reprehensible conduct.

The court also recognizes Defendants' alternative argument that, in lieu of a motion to modify or alter the previous sanctions order, Plaintiffs should have filed a standalone motion to compel an expanded cell phone extraction search for unproduced texts. However, even considering Plaintiffs' motion to modify the sanctions order(s) as a motion to compel,[4] the same result obtains.[5] Courts understandably are reluctant to authorize direct access to an opposing party's electronic storage device. Lewis v. Archer Daniels Midland Co., Civ. Action No. 17-14190, 2018 WL 6591999, at *2 (E.D. La. Dec. 14, 2018) (citation omitted). Further, the utility of permitting a forensic examination of a personal cell phone must be weighed against privacy concerns. Id. Nonetheless,

Id. (citations omitted).

*5 Therefore, to support the search of an opposing party's storage device, the requesting party must show 1) that the responding party has defaulted in its obligation to search its records and produce the requested data; 2) that the responding party's production has been inadequate; and 3) that a search of the opponent's electronic storage device could recover responsive materials. Id. (citation omitted).

Plaintiffs have made the requisite showing to support an expanded search of Raser's cell phone for text messages with LIMU's corporate officers. Plaintiffs requested the communications in discovery, and received few, if any text messages between Raser and his corporate officers. (C. Wellman Declaration; M/Modify, Exh. [doc. # 344-2]). Raser's privacy interest is not of paramount concern here where his phone already had been imaged by a third-party neutral. Moreover, Plaintiffs have demonstrated that Defendants' production of responsive texts for similar discovery requests has been less than comprehensive. See discussion, supra. Also, given the discovery of previously unproduced texts pursuant to the last extraction, there is every reason to believe that an expanded search for text messages between Raser and LIMU's corporate officers will yield similar results.[6] Therefore, the court will grant Plaintiffs' motion to the extent that they seek to expand the search of Raser's cell phone for text messages with LIMU's corporate officers.

However, Plaintiffs have not demonstrated the need to search Raser's phone for communications between Raser and themselves. While Plaintiffs suggest that the search will reveal that Raser deleted relevant text messages with themselves (and other promoters), Plaintiffs should be able to compare text messages from their own phones with Raser's prior production to discern whether he failed to disclose any. To this extent, the court will deny Plaintiffs' motion.

For the above-assigned reasons,

IT IS ORDERED that Plaintiffs' motion to supplement [doc. #359] is DENIED.

IT IS FURTHER ORDERED that Plaintiffs' motion to modify and/or alter orders [doc. # 344] is GRANTED IN PART and DENIED IN PART and that doc. #s 210, 256, & 266 are modified to include the phone numbers (as listed in Plaintiffs' motion)[7] of the following individuals in the extraction search:

The cost for the expanded search will be borne by Plaintiffs/Movants.

IT IS FURTHER ORDERED that Defendants' request for costs, which was premised upon their argument that Plaintiffs' motion was baseless, is necessarily DENIED.

In Chambers, at Monroe, Louisiana, on this 27th day of October, 2021.

As this motion is not excepted in 28 U.S.C. § 636(b)(1)(A), nor dispositive of any claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure, this ruling is issued under the authority thereof, and in accordance with the standing order of this court. Any appeal must be made to the district judge in accordance with Rule 72(a) and L.R. 74.1(W).

The court noted that Plaintiffs had requested these texts in discovery in February 2019. Id., pg. 9, n.6. Moreover, although Raser had agreed to produce any non-privileged, responsive text messages that referenced either suspension or termination of Ocean Sky, he had yet to produce any texts from LIMU distributors. Id.

She also mooted the motion for hearing and the request for expedited consideration. Id.

As the court has admonished Defendants previously, the Federal Rules of Civil Procedure “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” FED. R. CIV. P. 1.

Plaintiffs' alleged failure to convene a formal meet and confer before filing their motion does not necessarily sink their cause, as the court retains discretion to waive absolute compliance with the conference requirements. Andra Grp., LP v. JDA Software Grp., Inc., Civ. Action No. 15-0011, 2015 WL 12731762, at *18 (N.D. Tex. Dec. 9, 2015) (citation omitted). A court may deem a failure to confer excusable when the conference would prove “a waste of time,” or when “it is clear that the motion is opposed and that a conference would neither have eliminated nor narrowed the parties' dispute ...” Id. (citations omitted). Given Defendants' ongoing reluctance to agree to an expanded search of Raser's cellphone, it is clear that a meet and confer would not have proved fruitful in this instance.

To be sure, Defendants adduced evidence from a corporate officer that he did not recall any text messages with Raser. Of course, the officer's recollection is not definitive, nor dispositive of Raser's practices with all other officers.

The court has omitted the individuals' phone numbers to protect their privacy.