Lebenns v. Frost Productions

Background

Andrew Lebenns filed a letter motion asking the court to intervene in three discovery disputes: scheduling an examination by his forensic expert, obtaining hard-copy client files underlying sales-credit reports, and obtaining “native” electronic versions of alleged contracts. He also requested extensions of the fact-discovery and expert-discovery deadlines.

Lebenns proposed imaging four work computers or email servers belonging to him, Defendant McCarrick, Defendant Condon, and Patrick Rice, as well as three cell phones belonging to McCarrick, Condon, and Rice. The defendants objected, arguing that they were not required to submit to or pay for the forensic examination. They also argued that they had produced the data underlying the sales-credit reports and that there was never a final, agreed-upon contract signed by the parties.

Fact Discovery

Fact discovery had expired on July 30, 2023, after several prior extensions. The court considered factors including whether the request was opposed, whether reopening discovery would prejudice the other side, whether Lebenns had been diligent, whether the need for more discovery was foreseeable, and whether the discovery was likely to produce relevant evidence.

The court was satisfied by the defendants’ counsel’s representations that they had complied with their discovery obligations, including producing 1,232 pages of proposals and invoices described as underlying data related to Lebenns’s sales-credit reports. The court therefore found no good cause to reopen fact discovery and denied Lebenns’s requests concerning that discovery.

Expert Discovery and Forensic Examination

The court had previously stated that Lebenns could retain a forensic expert at his own cost and that the existing record did not support sanctionable conduct. The court found that the only evidence suggesting possible misconduct or likely relevant information concerned McCarrick. It therefore limited the examination to McCarrick’s work computer and cell phone, and to emails and text messages during the relevant period.

The defendants were directed to allow Lebenns’s forensic expert to conduct that examination by September 15, 2023. The court extended the expert-discovery deadline to October 2, 2023, for the limited purpose of obtaining the forensic analysis described in the order. It stated that, absent extraordinary circumstances or the parties’ agreement, it was unlikely to consider further requests to extend that deadline. The court reminded the parties to meet and confer in good faith and directed the clerk to close the motions at Docket Numbers 97 and 99.