United States District Court, D. Maryland
Lipton Hollander United States District Judge
Memorandum addresses the Motion to Appeal (ECF 61) filed by
Sergey Kantsevoy, M.D., plaintiff and counter-defendant, as
to discovery rulings made by U.S. Magistrate Judge Beth
Gesner. It is supported by a Memorandum. ECF 61-1 (redacted);
ECF 62 (sealed) (collectively, “Motion”). LumenR
responded in opposition to the Motion. ECF 72 (redacted); ECF
70 (sealed) (collectively, “Opposition”).
Kantsevoy replied. ECF 85 (redacted); ECF 86 (sealed)
(collectively, “Reply”). No hearing is necessary
to resolve the Motion. See Local Rule 105.6. For the
reasons that follow, I shall deny the Motion.
facts set forth below are limited to those pertinent to the
Kantsevoy is a gastroenterologist in Baltimore. ECF 1, ¶
4. Defendant LumenR LLC (“LumenR”) is a medical
device company, headquartered in California. Id.
¶ 5. Kantsevoy filed suit against LumenR in
February 2017, alleging breach of express and implied
contracts and related claims. See ECF 1. Plaintiff
alleges that he provided consulting and other services to
LumenR with regard to the development and testing of a
medical device, for which he has not been fully paid.
Id. ¶¶ 14-20. According to Kantsevoy,
LumenR agreed to provide him monetary compensation, as well
as an equity stake in LumenR. Id. ¶ 12. LumenR
contests, inter alia, the existence of the equity
portion of the contract. ECF 12 (Answer and Counterclaims),
the work for which Kantsevoy claims compensation is due and
owing to him involved his completion of 50 evaluation forms
and data sheets related to a clinical trial of a particular
medical device. ECF 61-1 at 11. Kantsevoy alleges that this
work took 45 hours, and that LumenR should compensate him at
the rates agreed to in the alleged contract. Id.
moved to compel production of these forms and data sheets
(ECF 34-1), asserting that their content is relevant to the
determination of the nature and adequacy of Kantesvoy's
work under the alleged agreement. Id. at 8.
Kantesvoy contested the request on several grounds. ECF 35
(sealed). First, he contended that the information
in the forms is irrelevant “or, in the alternative,
disproportionate” to the case. Id. at 5-6.
Second, he suggested that LumenR requested the data sheets so
LumenR could turn them over to a third party, Boston
Scientific, which had purchased the medical device in
question from LumenR, in order to receive a substantial
payment on its purchase contract. Id. at 8-9. He
also raised concerns about the confidentiality of the
patients' data contained in the data sheets. Id.
2017, I referred the case to Judge Gesner for resolution of
discovery disputes. ECF 37. In an Order of July 26, 2017 (ECF
48), she credited both LumenR's contention as to the
relevance of the documents and Kantsevoy's concern about
the unauthorized disclosure of information. Id. at
5-6. As to the patient information, Judge Gesner noted that a
Stipulated Confidentiality Order should be sufficient to
protect sensitive data. Id. at 6. As to
Kantsevoy's concern about disclosure of the forms to
Boston Scientific, Judge Gesner recognized the risk as
legitimate, but said that “without more, the court
cannot conclude that the existence of the purchase agreement
on its own justifies denying defendant access to highly
relevant discovery.” Id. Thus, Judge Gesner
ruled that Kantsevoy must produce the forms and data sheets,
but that appropriate documents could be designated as
confidential or for “attorneys' eyes only, ”
in order to protect sensitive information. Id.
Kantsevoy noted his appeal from Judge Gesner's ruling.
ECF 61-1. His objections on appeal tread the same
ground as his earlier objections, though perhaps with heavier
boots. In the Motion's “Factual Background”
section, Kantsevoy discusses his concern that defendant will
provide the forms to Boston Scientific (id. at 5-6),
and he mentions this view again in his “Argument”
section. Id. at 12. Similarly, plaintiff opposes the
discovery because “electronic copies of [the private
patient] data may be susceptible to cyber-attacks and
accidental reproduction if produced in electronic
format.” Id. at 2 n.4.
addition, Kantsevoy argues that the forms and data sheets are
irrelevant. Id. at 8. Specifically, Kantsevoy
contends that the products of his clinical work are
irrelevant because they are not the basis of his claim for
equity compensation. Id. at 9. Moreover, he asserts
that LumenR has already conceded that Kantsevoy completed the
forms, and the forms themselves are not necessary for LumenR
to be able to cross-examine Kantsevoy as to his work.
Id. at 9-12.
Kantsevoy offers a compromise: “If the Court requires
production, it should allow Dr. Kantsevoy to produce the
documents for inspection at his counsel's offices,
” rather than risking inadvertent disclosure by
actually handing over the forms. Id. at 12.
Civ. P. 72(a) provides that, within fourteen days, a party
may object to a magistrate judge's ruling on
non-dispositive matters, such as discovery orders. Id.;
see 28 U.S.C. § 636(b)(1)(A); Local Rule 301.5(a);
Tafas v. Dudas,530 F.Supp.2d 786, 792 (E.D. Va.
2008). Rule 72(a) provides that the district court should
only overrule the magistrate judge if the order objected to
is “clearly ...