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Frey v. Minter

United States District Court, M.D. Georgia, Columbus Division

October 17, 2019

ROBERT J. FREY, Plaintiff,
v.
ANTHONY BINFORD MINTER and HAROLD BLACH, JR., Defendants.

          ORDER

          CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE.

         The Court granted Defendants' summary judgment motion on all of Robert Frey's claims against them. Anthony Binford Minter's counterclaim for defamation remains pending for trial, and his second motion to compel document production from Robert Frey and non-party Hunton Andrews Kurth, LLP is now ripe. In light of its summary judgment ruling, the Court ordered Minter to notify the Court whether he intended to pursue the motion to compel and, if so, to articulate why the information sought is relevant to his counterclaim. Minter responded that he seeks a ruling on the motion to compel because although he has copies of the allegedly defamatory documents on which he bases his claim, as well as many other emails in which Frey says unflattering things about Minter, he wants to find out if there are any other documents relevant to whether Frey acted with malice when he made the allegedly defamatory statements. Frey argues that there is no need to decide the motion to compel, asserting that the counterclaim lacks merit, that permitting Minter to discover documents relevant to a “sham” counterclaim would impose an undue burden on him, and that it would be “a serious waste of the Court's time” to permit the counterclaim to proceed to trial. Pl.'s Resp. to Def.'s Resp. to Court 1-2, ECF No. 106. But Frey did not file a summary judgment motion on Minter's counterclaim or seek leave to do so out-of-time, so the Court plans to try the counterclaim unless the parties resolve it. Thus, the Court must decide the second motion to compel. As discussed below, the motion (ECF No. 95) is granted to the extent that Frey shall produce omitted portions (if any) of three email chains. The motion is otherwise denied.

         DISCUSSION

         I. Motion to Compel Responses from Robert Frey

         The Court previously ordered Frey to respond to Minter's first request for production of documents. Order Granting Mot. to Compel 6 (June 12, 2019), ECF No. 88. Minter asserts that Frey did not adequately respond to his document requests because Frey's form of production is not reasonably usable and some documents are missing. Minter requested “[a]ll written communication (electronic or otherwise) between [Frey] and Kurt A. Powell from July 31, 2012 to the present. The request includes communications between you, Powell, and third persons.” Def.'s Req. for Produc. of Docs. 2 ¶ 1, ECF No. 79-3. He also requested “[a]ll written communication (electronic or otherwise) between [Frey] and Sal Diaz-Verson from January 1, 2015 to the present. The request includes communications between you, Diaz-Verson, and third persons.” Id. at 2 ¶ 2.

         A. Form of the Production

         Minter did not specify a format for producing electronic information like emails (such as TIF, PDF, or native format), though he asked to receive it “via read-only optical storage disc, flash media, or cloud/online storage made accessible to Defendant.” Def.'s Req. for Produc. of Docs. 2 ¶ 5. According to Minter, Frey responded to his document requests by producing a single 156-page document that includes emails and other documents that Frey printed and then physically cut and arranged on a scanner to create a PDF document. Minter argues that this form of production violates Federal Rule of Civil Procedure 34(b)(2)(E). Rule 34 requires that a “party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” Fed.R.Civ.P. 34(b)(2)(E)(i). And, if the “request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed.R.Civ.P. 34(b)(2)(E)(ii).

         The Court reviewed Frey's production. It does appear to be a collage of cut-and-pasted emails. Certainly, that is not the form in which the emails are ordinarily maintained. But it is reasonably usable, even if Frey did not expressly organize the emails to correspond to Minter's categories. Based on the Court's review, the first half of the PDF document contains messages that are generally responsive to Minter's request number 1, and the second half of the PDF document contains messages that are generally responsive to Minter's request number 2. They are mostly organized by date, although some emails were not arranged on the scanner in precise chronological order. Given Frey's representation that he had difficulty producing pre-2016 emails because he used a now-obsolete program to store them and has not yet found an efficient way to view the messages or import them into his current email program, it appears that Frey could only cure the shortcomings in his production by reprinting the emails and scanning them again, but without cutting and pasting first. But, except for a few emails discussed below, Minter already has the documents he sought. With an eye towards proportionality, the Court finds that requiring Frey to produce all these emails again, in a slightly different format, is unwarranted. The Court therefore declines to order Frey to supplement his production based on the form.

         B. Incomplete Email Chains

         Minter argues that Frey did not produce the complete content of some emails because he omitted portions of email chains when he cut and scanned them. Minter contends that pages 8, 15, and 33 of Frey's production are incomplete email chains.

         Based on the Court's review, it appears that Frey may have only included portions of two email chains that were directly between Frey and Powell and did not include one or more of the preceding messages in each email chain. See Def.'s 2d Mot. to Compel Ex. A, Pl.'s Resp. to Def.'s Req. for Produc. of Docs. 8, portion of email chain between R. Frey, B. Voelzke & K. Powell (Jan. 17, 2013), ECF No. 95-2 at 8; Def.'s 2d Mot. to Compel Ex. A, Pl.'s Resp. to Def.'s Req. for Produc. of Docs. 15, email from K. Powell to R. Frey (Sept. 30, 2015), ECF No. 95-2 at 15 (purporting to forward message with subject “Diaz/Blach: Amendable Defect”). If Frey did omit portions of those email chains that were ultimately sent from Frey to Powell (or vice versa), he should not have. It is not clear that any portion of the chain has been omitted on page 33, but if it has, it should not have been. See Def.'s 2d Mot. to Compel Ex. A, Pl.'s Resp. to Def.'s Req. for Produc. of Docs. 33, Email from R. Frey to K. Powell (Jan. 27, 2016), ECF No. 95-2 at 33 (forwarding email with subject “HB377 (from 2013, 2014 & 2015 sessions)”; forwarded message appears to be included).

         In summary, if Frey did not produce all of the messages in these three email chains that were ultimately included in communications between Frey and Powell, he should have. They are part of communications between Frey and Powell, even if neither was the sender of the original message in the chain. Accordingly, Minter's motion to compel on this point is granted. Within fourteen days, Frey shall produce to Minter complete copies of the email chains discussed above.

         C. Emails From Third Parties to Frey

         Minter complains that Frey did not produce communications from third parties to Frey that were copied to Powell, such as emails from associates who worked for Powell. But it is not clear from Minter's request that he sought communications from third parties to Frey that copied Powell. Such communications ...


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