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Physicians Healthsource, Inc. v. Alma Lasers, Inc.

United States District Court, N.D. Illinois, Eastern Division

November 20, 2014

PHYSICIANS HEALTHSOURCE, INC., an Ohio corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff,
ALMA LASERS, INC. and JOHN DOES 1-10, Defendants.


CHARLES P. KOCORAS, District Judge.

This matter comes before the Court on Defendant Alma Lasers, Inc.'s ("Alma") motion to strike. For the following reasons, the Court grants Alma's motion to strike.


On May 18, 2012, Plaintiff Physicians Healthsource, Inc. ("Plaintiff") filed a complaint against Alma and John Does 1-10 (collectively "Alma") after it received multiple faxes advertising an October 17, 2008 seminar in violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. ยง 227. The parties engaged in extensive fact and expert discovery, including the deposition of Kathy Curtis ("Curtis"), Plaintiff's office manager, who testified that she would mail fax logs to Plaintiff's attorney if she received them from the fax machine and that Plaintiff, itself, would not retain a copy of these fax logs.

After Curtis's deposition and in a letter from February 23, 2013, Alma requested that Plaintiff produce the fax logs described by Curtis. In response, Plaintiff produced fax logs from July 22, 2008, August 5, 2008 and August 19, 2008 (collectively the "Fax Logs"). The Fax Log from August 19, 2008 was produced in redacted form pursuant to a protective order. On June 6, 2013, the Court closed all fact discovery. In early 2014, the parties engaged in expert discovery. Alma's expert Scott Kuperman testified about the Fax Logs, as did Plaintiff's expert Robert Biggerstaff ("Biggerstaff"). The Fax Logs were the key factors in both parties' expert reports and expert depositions.

On April 17, 2014, Plaintiff filed its motion for class certification. In the motion, Plaintiff asserted that it based its claims on faxes allegedly sent by Westfax at Alma's direction. Alma filed its opposition to the motion on May 22, 2014 in which Alma argued that the Fax Logs produced in discovery failed to show receipt of any fax from Alma or Westfax, coupled with the fact that the Fax Logs show the name "M Raza Kahn MD" in the header, and not Plaintiff's name. On June 19, 2014, Plaintiff filed its reply to the motion for class certification and attached a Declaration from Biggerstaff ("Biggerstaff's Declaration"). Attached to Biggerstaff's Declaration was a new fax log from August 19, 2008 (the "New Log"). Biggerstaff's Declaration explains that on June 17, 2014, Plaintiff discovered the New Log, which establishes that the August 19, 2008 fax log with a 9:23 timestamp is related to a fax log entry on August 19, 2008 at 11:27. Biggerstaff contends that the New Log is consistent with a fax being sent from Mountain Time (WestFax is located in this time zone) to a receiving fax machine in Eastern Time (Plaintiff's fax machine is in this time zone). Plaintiff insists the failure to produce the New Log was an "inadvertent mistake".

On July 1, 2014, Alma filed a motion to strike Biggerstaff's Declaration, all arguments and references based on Biggerstaff's Declaration, and bar any other use of the untimely-produced documents. In its motion, Alma argues that after Plaintiff received Alma's opposition to the class certification motion that: (i) Plaintiff changed its theory of the case in its reply brief; (ii) solicited a new declaration from its expert, Biggerstaff, that contracted his prior deposition testimony; and (iii) attempted to produce new documents that had been previously withheld. Specifically, Alma alleges the New Log was not produced during discovery and now Plaintiff intends to use the New Log to show receipt of a fax from a number it attributes to Alma. Thus, Alma contends that Plaintiff's actions are a violation of multiple subsections of Federal Rule of Civil Procedure 26 ("Rule 26").

After reviewing the motion to strike, response, and reply, this Court ordered Plaintiff to produce one knowledgeable witness to be deposed by both parties, within one month from August 29, 2014, when the order was issued. This witness was to have sufficient information as to: (i) Plaintiff's failure to produce the New Log dated August 19, 2008; and (ii) the circumstances surrounding Plaintiff's discovery of the additional fax journal entry on or around June 18, 2014.

On September 19, 2014, Plaintiff produced John Lowry ("Lowry"), an attorney who worked for Plaintiff, but was not an employee of Plaintiff. According to his deposition, Lowry is considered a "liaison" between Plaintiff and Anderson & Wanca, the firm that represents Plaintiff in the current proceeding. Lowry testified at his deposition that Plaintiff's counsel had possession of the New Log since Lowry sent it via email to Plaintiff's counsel in March 2013. Lowry also testified that he re-sent the New Log in June 2014 to Plaintiff's counsel at Anderson & Wanca. Both parties then provided the Court with supplemental memorandum detailing their analyses of Lowry's deposition testimony.

Pursuant to Federal Rule of Civil Procedure 37 ("Rule 37"), Alma moves to: (i) strike Biggerstaff's Declaration submitted by Plaintiff as an attachment to the Reply; (ii) strike all arguments and references in the Reply based on Biggerstaff's Declaration and all documents produced by Plaintiff after the close of discovery (and after Plaintiff filed the Reply); and (iii) bar any other use of the untimely-produced documents.


Rule 37 provides for sanctions:

[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.

Fed. R. Civ. P. 37(c)(1). Rule 37 also permits the Court to order payment of the reasonable expenses and impose ...

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