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McLean v. Alere, Inc.

United States District Court, W.D. Kentucky, Louisville Division

July 8, 2015

ROBERT PAUL McLEAN, Plaintiff/Counterclaim Defendant,
v.
ALERE, INC., Defendant/Counterclaim Plaintiff/Third-Party Plaintiff
v.
GOMEDCO, LLC, Third-Party Defendant

MEMORANDUM OPINION AND ORDER

COLIN H. LINDSAY, Magistrate Judge.

This matter is before the Court on a motion for contempt ("Contempt Motion") (DN 55) filed by Plaintiff Robert Paul McLean ("McLean") in relation to certain discovery requests regarding records from a website, salesforce.com ("Salesforce.com" or "Salesforce"). The Contempt Motion was filed on December 1, 2014. Defendant Alere, Inc. ("Alere") filed a response (DN 62) on January 26, 2015, and McLean filed a reply (DN 65) on January 29, 2015. On April 15, 2015, the Court issued an Order ("Order for Sur-Reply") (DN 88)[1] in relation to the Contempt Motion. The Court concluded that it required additional information from Alere before it could rule on the Contempt Motion. ( See DN 88 at 9-10.) On May 1, 2015, Alere filed a sur-reply ("Sur-Reply"). (DN 92.) The Contempt Motion is now ripe for review. For the following reasons, the Contempt Motion (DN 55) is DENIED.

Background

In the Order for Sur-Reply, the Court reviewed the extensive procedural history underlying the Contempt Motion, the parties' briefing on the Contempt Motion itself, and the contents of the Salesforce.com-related documents that were produced by Alere to McLean and subsequently provided by McLean to the Court. The Court then ordered Alere to file a sur-reply addressing an enumerated list of topics related to its production of Salesforce.com-related documents, as well as "[a]ny additional information that Alere believes would assist the Court in reaching a ruling on the Contempt Motion." (DN 88 at 10.)

In compliance with the Order for Sur-Reply, Alere filed the Sur-Reply and a document styled, Supplemental Affidavit of Christopher High ("High Affidavit"). (DN 92, 92-1.) The Court finds that Alere has complied with the Order for Sur-Reply, as the Sur-Reply addresses each of the areas of inquiry listed by the Court. Alere's responses to the Court's inquiries are summarized below.

1. Whether Alere contends that its document production (DN 66) is in full compliance with the Court's Order of September 30, 2014 (DN 52);

Alere represents that it has complied in full with the Court's Orders related to production of Salesforce.com data. Alere states that it has produced all Salesforce.com data entered by McLean, Sara Riley ("Riley"), and Scott Hamama ("Hamama") "between the date that each received their user name and December 31, 2012." (DN 92 at 1 (citations omitted).) Additionally, Alere states that McLean "misrepresents" what Alere has produced. Alere contends that it produced significant Salesforce.com data, in native format, and that it agreed to produce additional documents, even before Mclean filed his initial motion to compel Salesforce.com information. ( Id .; see DN 19 (McLean's motion to compel).)

2. Whether Chris High is an employee of Alere, and the nature of his role in creating the spreadsheets (DN 66) containing Salesforce.com data;

Alere states, through both the Sur-Reply and the High Affidavit, that Christopher High ("High") is an employee of Alere and works out of its Broomfield, Colorado offices. His title is "Global CRM Administrator." (DN 92 at 2; DN 92-1 at ¶¶ 2.) High states that his "duties include maintaining and implementing the CRM systems used by Alere." (DN 92-1 at ¶3.) "A CRM is a customer relationship management tool that allows a business to manage the sales relationships the business has with its customers." ( Id. ) Alere's CRM is Salesforce, "which permits Alere to collect information and data from multiple computer databases." ( Id. )

3. Whether the spreadsheets (DN 66) produced by Alere contain data in its native format from Salesforce.com or whether such data was reproduced in a different format by Alere or some other entity or individual;

Alere states that the spreadsheets it produced to McLean were created "by running searches directly in Salesforce and then exporting the native data search results directly into an Excel spreadsheet." (DN 92 at 2; DN 92-1 at ¶4.) High states that the data in the spreadsheets is "native data, " as it "was derived from Alere's Salesforce.com database and was exported without any manipulation or changes[.]" (DN 92-1 at ¶4.)

4. Whether the spreadsheets (DN 66) produced by Alere contain all data input into Salesforce.com for the individuals and date ranges required by the Court's Order of September 30, 2014 (DN 52);

As is stated above, Alere asserts that the Salesforce.com spreadsheets that it produced to McLean include "[a]ll available information entered by the three individuals at issue for the specified date ranges." (DN 92 at 2.)

5. If Alere contends, in response to item number (4), supra, that the data contained on the spreadsheets (DN 66) are exhaustive, an explanation as to why Alere previously represented to the Court and to McLean's counsel that responding to the document requests regarding Salesforce.com would ...


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