2010-00090603-CU-BC

Kristine Burke MD vs. Meditab Software Inc

Nature of Proceeding:    Motion to Compel Inspection and Production of Tangible Things

Filed By:  Gortinsky, Alex

Defendant Meditab Software, Inc.’s motion to compel inspection and production of
tangible things is ruled upon as follows.

At the outset, the court must remind both counsel that given the number of motions
such as this which must be addressed on a daily basis, there are simply not enough
judicial resources available to resolve each and every discovery dispute that could
have and should have been resolved informally.  That this is just such a dispute only
serves to highlight the critical need for legitimate, reasonable and good faith meet-and-
confer efforts before filing any discovery motion.

This action involves a written contract entered into on or about December 31, 2007.
The contract was for a software program related to the management of a medical
practice. Plaintiffs allege that they never received the entire program and that the
portions they did receive were defective. Trial is scheduled for June 30, 2014.

The Court notes that although Defendant titles the motion as one to “compel inspection
and production”, Plaintiffs only objected to the demands and have not agreed to
produce the items.  Thus, the motion is premature.  A motion to compel compliance
pursuant to Code of Civil Procedure §2031.320(a) is appropriate where a responding
party has agreed to produce documents but then fails to permit inspection consistent
with that response. Here, Defendant’s motion indicates that Plaintiffs have not yet
agreed to produce any responsive items and therefore, Plaintiffs cannot yet be
compelled to comply with their written response.  The Court, however, will construe the
instant motion as one to compel further responses.
The following requests are in dispute:

Request Number 1 : The actual or exact copies, i.e., bit-by-bit mirror image copies, of
all hard drives on the desktop computers, laptop computers, notebook computers,
personal digital assistants, smartphones, servers and other electronic media
containing, or that at one time contained, Meditab’s IMS, as defined and/or described
in Plaintiffs’ complaint, and all its related software, codes, components, portals,
modules, folders, directories, backups, logs and electronic data in its original/native
format and all layers thereto.

Request Number 2: The actual or exact copies, i.e., bit-by-bit mirror image copies, of
all relevant disks, CDs, DVDs and other removable media containing Meditab’s IMS,
as defined and/or described in Plaintiffs complaint.

Plaintiffs objected to each as follows:  “Dr. Burke objects to this request on the grounds
that is (sic) grossly overbroad as to time and scope, is thus unduly burdensome and
has been propounded solely to harass Dr. Burke and
drive up the cost of litigation. Dr. Burke objects to this request on the grounds that it
seeks information that is neither relevant to the subject matter of this action nor
reasonably calculated to lead to the discovery of admissible evidence. Dr. Burke
objects to this request on the grounds that it seeks information protected from
discovery by the right to privacy of Dr. Burke, as well as Dr. Burke’s patients and
employees. Dr. Burke objects to this request on the grounds that it seeks information
protected by the Health Insurance Portability and Accountability Act
of 1996 (HIPAA) and 45 CFR section 160.100 et seq. Dr. Burke objects to this request
on the grounds that it seeks information protected from discovery by the attorney-client
privilege and work product doctrine. Dr. Burke objects to this request on the grounds
that it seeks documents that are confidential, proprietary or constitute trade secrets.”

On May 2, 2014, Plaintiffs served supplemental responses to Request No. 2 stating
that Dr. Burke does not have possession, custody or control of any items responsive to
the request.

Defendant filed the instant motion on May 5, 2014.

Request No. 1 – GRANTED

During meet and confer efforts, Plaintiffs agreed to allow Defendant to copy Meditab’s
IMS contained on Dr. Burke’s computer under the following conditions:

(1) the computer forensics specialist who performs the imaging must agree, in writing,
to image only that portion of the hard drive containing Meditab’s
IMS;

(2) a copy of the data obtained must be provided to Dr. Burke in the same
format in which it is provided to Defendant;

(3) the computer forensic specialist must be mutually agreed to by the parties.
Plaintiffs suggested Tim Bryan of Crowe Horwath.

Defendant, however, will not agree with Plaintiffs’ conditions.  Defendant is unwilling to
surrender its choice of an expert witness.  It has also learned that Plaintiffs’ suggested
expert, Tim Ryan, has a conflict and cannot work on this matter.

In order to address both parties’ concerns, the Court has determined that the most
reasonable resolution is to allow Defendant to inspect the requested electronic media
with Plaintiffs’ attorney and/or Plaintiffs’ expert witness in attendance (if desired).  The
parties shall meet and confer regarding a mutually convenient date and time for
inspection.

Plaintiffs shall serve a verified supplemental response by no later than June 13, 2014.

Request No. 2.  – DENIED

As noted above, Plaintiffs served a supplemental response to this request.  Moreover,
Defendant’s separate statement does not include the text of Plaintiff’s’ supplemental
response, as required by CRC 3.1345(c).

Both parties’ requests for sanctions are DENIED.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.