United States District Court, D. Utah, Central Division
EAGLE AIR MED CORPORATION, a Utah Corporation, and VALLEY MED FLIGHT INC., a North Dakota Corporation, Plaintiffs
SENTINEL AIR MEDICAL ALLIANCE, a Wyoming Limited Liability Company, JEFFREY FRAZIER, an individual, and DOES 1 through 10, Defendants.
MEMORANDUM DECISION AND ORDER MODIFYING THE ORDER
GRANTING IN PART MOTION FOR SANCTIONS (ECF NO. 117)
J. FURSE UNITED STATES MAGISTRATE JUDGE
Court suspended its Order (ECF No. 171) Granting in Part
Motion for Sanctions (ECF No. 117) to permit Sentinel Air
Medical Alliance, LLC and Jeffrey Frazier
(“Sentinel”) an opportunity to respond to the
Motion. (ECF No. 172.) Having now read Sentinel's
Opposition and Eagle Air Med Corporation
(“Eagle”) and Valley Med Flight Inc.'s
(“Valley”) Reply, the Court converts the Motion
for Sanctions into a Motion to Compel and finds good cause to
grant the Motion in part pursuant to Fed.R.Civ.P. 37(a).
and Valley asked the Court to (1) order Sentinel to submit
Mr. Frazier's laptop computers for examination and
imaging by a forensic computer expert of Eagle's and
Valley's choosing, at Sentinel's expense, so that
Eagle and Valley can ensure that all relevant information and
documents have been produced, (2) award Eagle and Valley
their reasonable attorney fees and costs incurred while
attempting to obtain the information and documents at issue,
and (3) enlarge the time for fact discovery so that Mr.
Frazier's laptops can be thoroughly examined, any
information and documents obtained can be properly reviewed,
and any necessary additional discovery completed. (Mot. for
Sanctions at 2, ECF No. 117.) The Court interprets this
request as one for inspection, which is available as a remedy
for evasive or incomplete answers or responses to discovery.
Fed.R.Civ.P. 37(a). Eagle and Valley essentially ask the
Court to order Sentinel to produce Mr. Frazier's laptops
for inspection because Sentinel's responses have been
incomplete and evasive. “Under [the discovery] rules,
the presumption is that the responding party must bear the
expense of complying with discovery requests.”
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358
(1978). Thus, an order requiring production for inspection
leaving the cost of that inspection with the responding party
would leave the burden where it generally falls. Under
Federal Rule of Civil Procedure 37(a), a party may move to
compel discovery when a party provides an evasive or
incomplete answer or response to discovery.
began this litigation saying it does not keep any records of
letters sent to clients and claiming the database on which it
relied to provide advice had fallen victim to hard-drive
failure and was no longer in use. (Feb. 21, 2017 Letter from
Bell to Hunt, Covington, & Wertheimer, ECF No. 118-12;
Answer to Interrog. Nos. 1, 2, 18, 20. RFP 4, 14 & 16,
ECF Nos. 118-9.) These statements forced Eagle and Valley to
subpoena non-parties to gather documents to support their
case, as the statements made and the basis for those
statements form the heart of this defamation case. Thus Eagle
and Valley had to go to extra expense and effort to obtain
relevant, responsive, proportional documents.
2017, Mr. Frazier admitted in his deposition that he
recreated the database almost immediately and chose not to
produce documents because, in short, he did not think Eagle
and Valley deserved to have the information. (Frazier Dep.
128:15-136:9, ECF No. 118-14.) Then on February 1, 2018, in
Sentinel's 30(b)(6) deposition, Mr. Frazier admitted to
keeping between twenty and thirty percent of the claim review
letters he issued. (30(b)(6) Dep., ECF No. 185-2 at 6:9-12.)
discovery responses, meet and confer letters, and depositions
leave the reader with no other conclusion but that it
intentionally attempted to avoid production of relevant,
responsive, proportional discovery in this case. Sentinel
claims to have produced all requested information without a
motion to compel. (Defs.' Opp'n to Pls.' Mot. for
Sanctions 7, ECF No. 174.) Given performance to date, Eagle
and Valley do not trust Sentinel's representations and
now request Sentinel produce Mr. Frazier's laptop
computers for inspection by a forensic expert. The course of
conduct in this case and the history of Mr. Frazier's
computers make an independent forensic examination of Mr.
Frazier's laptop computers in his possession, custody, or
control at Sentinel's expense necessary and proportional.
Court ORDERS Sentinel to submit Mr. Frazier's laptop
computers for examination as follows:
independent third party computer expert shall be appointed by
the Court and shall mirror image Mr. Frazier's laptops.
parties have until December 14, 2018, to meet and confer
regarding their designation of an independent computer
expert. If the parties cannot agree on an independent
computer expert, each party shall submit its recommendation
for an independent expert to the Court, and the Court shall
select the expert.
appointed independent computer expert shall serve as an
Officer of the Court. Thus, to the extent that this computer
expert has direct or indirect access to information protected
by attorney-client privilege, such disclosure will not result
in any waiver of Sentinel's privilege.
expert shall mirror image Mr. Frazier's laptops.
Eagle and Valley shall provide a list of search terms to the
Court to identify responsive documents to Requests for
Production 4, 14, and 16 by December 14, 2018. After
Plaintiff has submitted the search terms to the Court,
Sentinel shall have 5 days to submit their objections to the
Court regarding any of the search terms, which the Court will
rule upon. The Court will provide the search terms to the
the expert has mirror imaged the laptops, the expert shall
search the mirror image results using the search terms. The
results of the search terms will be provided to Sentinel and
to the Court, along with an electronic copy of all responsive
documents (also to be provided to both Sentinel and the
Court). The search ...