In RIG Consulting, Inc. v. Rogers, No. 2:23-cv-1286-RJC (W.D. Pa. May 8, 2025), Pennsylvania Robert J. Colville, finding Defendant Rogers’ lack of effort to locate responsive emails and Microsoft Teams account messages to be “inexcusable”, ordered Rogers to produce all responsive messages within 28 days. He also awarded fees and costs associated with the present Motion, with additional sanctions possible for failure to comply.

Case Discussion and Judge’s Ruling

In this case involving claims against former employees of Plaintiff for trade secret misappropriation and interference with Plaintiff relationships, Rogers produced 1,045 pages of text messages between Rogers and Defendant Hansel and 158 pages of additional text messages between Rogers and Defendant Hadad. However, Plaintiff identified the following deficiencies in Rogers’s responses:

“(a) [T]he failure to produce any attachments to [ ] text messages; (b) [the failure to produce] [Microsoft Teams account] messages to or from clients, customers[,] or current or former employees of RIG; and (c) [the failure to produce] emails from Rogers’s Lochner email address sent to or received from clients, customers[,] or current or former employees of RIG.”

Plaintiff also sought permission to serve a ‘new, more limited subpoena on Lochner[,]’ as well as an order directing Rogers ‘to provide his iPhone, Lochner laptop[,] and Teams account to counsel for RIG to be examined, at Rogers’[s] cost, by an independent computer forensic firm chosen by RIG[,]’”

In response to that request, Judge Colville stated: “Because the Court will order Rogers to search for and provide the information at issue, the Court denies without prejudice RIG’s requests to serve a subpoena on Lochner and to take possession of Rogers’s laptop, cell phone, and Teams account. Should Rogers fail to comply with this Memorandum Order, or should the Court conclude that he has made an incomplete production respecting responsive emails or Teams messages in his possession, custody, or control, RIG may renew its requests respecting an updated subpoena and possession of Rogers’s laptop, cell phone, and Teams account.”

Rogers had also responded to Plaintiff’s request for production for “All Documents that refer to or reflect Communications between Rogers and any of RIG’s customers, clients, or current and/or former employees from November 1, 2022 to the present” by stating the “request is overly broad and vague”. On November 19, 2024, he also said he had had “numerous communications with individuals that were customers and clients of RIG”, “communications with current and/or former employees of RIG” and “would gladly provide communications between certain individuals that the plaintiff requests.” But, on December 31, 2024, he said: “while Rogers has spoken truthfully about his experience at RIG, he is in possession of no responsive documentation and will again furnish the search results to Plaintiff.”

Judge Colville stated: “To be clear, Rogers’s overbreadth and vagueness objections are overruled. The Court has twice ordered Rogers to fully respond to outstanding discovery requests due to his failure to respond to discovery motions. The Court will not disturb those orders. Rogers shall fully respond to request for production no. 32, and any failure to comply with this Memorandum Order will result in attentive consideration of harsher sanctions than those provided for herein.”

Continuing, he added: “In one breath, Rogers states that he should have been taken at his word that he possessed no responsive information, i.e., ‘I did not possess any information responsive to their request and I said so. Now that should have stopped the inquiry.’…In the next, he states that he searched a bit deeper and found 1,200 pages of responsive text messages. Again, Rogers must produce responsive information that is in his possession, custody, or control. His focus on the ‘possession’ aspect of Rule 34 strikes the Court as an attempt at clever gamesmanship. Based upon the record before the Court and Rogers’s own statements, the Court believes that it is not only possible, but likely, that a search of Rogers’s Lochner email and Teams account may result in a production similar to the text message production. At this juncture, it appears that Rogers has not even attempted to locate responsive emails/Teams messages to date. The same is, frankly, inexcusable in light of the Court’s prior Orders.”

Ordering Rogers to produce “(1) Microsoft Teams account messages to or from clients, customers, or current or former employees of RIG; and (2) emails from Rogers’s Lochner email address sent to or received from clients, customers, or current or former employees of RIG” within 28 days, Judge Colville stated: “Rogers proceeds at his own peril should he again assert that he has no responsive emails or messages in his possession, custody, or control, or should the Court conclude that he has made an incomplete production respecting responsive emails or Teams messages in his possession, custody, or control. Again, the Court will entertain renewed requests for possession of Rogers’s laptop and cell phone and a renewed subpoena on Lochner should Rogers advance such an assertion. If it is ultimately determined that Rogers failed to produce something in his possession, custody, or control as required by this Memorandum Order, the Court will entertain imposing sanctions for such a discovery violation.”

While denying some sanction requests, Judge Colville did “award fees and costs associated with the present Motion” and stated: “Counsel shall pay 50% of the imposed sanction.”

So, what do you think? Should Rogers have received greater sanctions for having failed to produce responsive emails and Teams account messages? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today.

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