ST. LOUIS – A federal judge has weighed in on a years-long dispute regarding the existence of data that might prove pivotal in Telephone Consumer Protection Act litigation.
In an opinion issued May 22, Judge Stephen Limbaugh Jr. of the U.S. District Court for the Eastern District of Missouri granted in part and denied in part a chiropractor's motion for additional discovery in a suit over faxes.
Limbaugh wrote that plaintiff Dr. Alan Presswood has spent “the past several years engaged in a dispute” with American Homepatient Inc. “about the existence of certain ‘RightFax data’ that (Presswood) believes will show, if found, that (American Homepatient) violated the Telephone Consumer Protection Act by sending ‘unsolicited facsimile advertisements to (the) members of the putative class.’”
Limbaugh said the most-recent round of discovery focused on searching 26 quarterly American Homepatient backup tapes from June 2013. Neutral third-party 4Discovery reviewed and cataloged the tapes and said, “the SQL cluster containing the RightFax database is not located on the tapes that were provided,” the ruling states.
However, 4Discovery did mention a reference on those tapes to a backup job for the database in question, prompting Presswood “to seek additional discovery that this court found to be too expansive and open-ended,” Limbaugh wrote.
Given the new plausibility the relevant tapes do exist somewhere, he granted Presswood the chance to submit an extra request for a narrower discovery extension.
In that request, Presswood asked “to catalog two more sets of backup tapes from September 2013 and December 2013, to conduct three additional depositions, and to install a request-based system to ‘assist’ 4Discovery in its cataloging efforts,” the ruling states. In response, American Homepatient said the request still is too expansive after more than five years of discovery.
“If the theoretical possibility that more documents exist sufficed to justify additional discovery, discovery would never end,” Limbaugh wrote, quoting his own review of an earlier Presswood motion, but noting he still retains the right to grant the request.
Presswood said he would cover the cost of additional discovery and that any prejudice that might be created by a final discovery extension would be minimal.
“The parties have been engaged in the hunt for the lost RightFax Data for some time now, and at considerable cost to plaintiff,” Presswood wrote. “(American Homepatient) is not unfairly surprised by any of this, and the primary cost to it is simply time and cooperation at this juncture.”
Limbaugh said he wouldn’t allow Presswood to “continuously expand” his search, but that allowing a look at the quarterly tapes immediately after the June 2013 backups represented “a reasonable opportunity to finish what (Presswood) started.”
However, Limbaugh denied Presswood’s request to compel another deposition of David Morris regarding fax log locations and American Homepatient’s backup procedures as well as two first-time depositions, for Iron Mountain and Peak Ten, which Presswood said would “establish the chain of custody of the tapes.”
“As best can be gleaned, these efforts seek to continue the same goose chase that this Court has already indicated it is not willing to entertain moving forward,” Limbaugh wrote.
He said Iron Mountain could supply a declaration of the chain of backup tape custody from 2013, noting it’s already ordered to do so for June 2013, but declined Presswood’s request to have the declaration extend all the way to the present.
Limbaugh also denied Presswood’s push for establishing a protocol allowing him to make requests to 4Discovery “to assist (it) in completing its tasks, saying such a protocol is neither needed nor advisable.