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Case: 2:11-cv-00450-JLG-MRA Doc #: 42 Filed: 05/21/13 Page: 1 of 4 PAGEID #: 427



Steven R. Isaac, et al.,


Ebix, Inc.,








Civil Action 2:11-cv-450

Judge Graham

Magistrate Judge Abel

Discovery Dispute Conference Order

On April 19, 2013, counsel for the parties appeared for a discovery dispute conf-

erence with the Magistrate Judge.

Disputes not resolved during March 15, 2013 discovery dispute conference.

Plaintiffs’ Document Request No. 40. Plaintiffs seek termination information

regarding 16 employees. During the April 19 conference, defendants’ counsel said that

the information would be produced April 22.

Plaintiffs’ Requests for Production Nos. 18-20. During the conference, the parties

were ordered to consult regarding these requests for production.

Raw Peachtree data for spreadsheet summarizing the Peachtree billing systems’

data for prior sales. Peak used Peachtree billing through 2010.1 Defendants provided

plaintiffs’ counsel with a manipulable spread sheet so they can do their own data analy-

1Ebix used a Peoplesoft data base. It entered Peak’s data, kept on Peachtree soft-

ware, into that data base.

Case: 2:11-cv-00450-JLG-MRA Doc #: 42 Filed: 05/21/13 Page: 2 of 4 PAGEID #: 428

sis. Defendants’ counsel believed the data was already in the spreadsheet. If it is not,

plaintiffs’ counsel will advise defendants’ counsel who will endeavor to produce it.

Ebix’s 2008-09 accounting databases and a complete set of credit memos.

Defendants’ counsel said that the credits are on the spreadsheet. Credit memos were

produced a week before the April 19 conference. Defendants will provide any missing

credit memos.

Documents regarding calculation of the Earn Out. Plaintiffs argued that defend-

ants could not rely solely on its auditor’s papers to respond to their request for produc-

tion of documents involving the calculation of the Earn Out. Defendants’ counsel said

they did not know what plaintiffs were seeking. Counsel were ordered to consult, with

plaintiffs’ counsel particularizing their request.

Plaintiffs seek Ebix’s 2009 accounting database to reconcile Peak’s deferred

revenue. Plaintiffs’ counsel argued that you cannot tell the 2010 beginning basis of the

accounts without looking at 2009. Defendants’ counsel argued that the accounting is

done on an accrual basis, so there are some adjustments. Ebix’s acquisition of Peak

closed September 30, 2009. Defendants will provide the Peachtree data for the fourth

quarter of 2009. It was ordered that defendants make that production without prejudice

to plaintiffs right to renew the request after reviewing the fourth quarter data if they

believe additional data is needed to determine the 2010 accounts beginning bases.

Ebix’s discovery requests to plaintiffs. It is ORDERED that plaintiffs’ counsel

have their clients search for emails that refer to a spread sheet comparing Peak’s sales


Case: 2:11-cv-00450-JLG-MRA Doc #: 42 Filed: 05/21/13 Page: 3 of 4 PAGEID #: 429

records with Ebix’s records of Peak’s sales and any analysis of them. Those spread

sheets and related documents must be produced unless they are privileged.2 If they

have already been produced, plaintiffs’ counsel must provide defendant’s counsel with

the Bates page numbers for the documents. Plaintiffs must formally respond to the doc-

ument requests on or before May 1, 2013 and, if privileged, provide a declaration of

facts establishing the factual predicates for a claim of privilege.

Emails containing attachments, but attachments not produced. Defendants’

counsel will identify these emails for plaintiffs’ counsel within two weeks of April 19.

Plaintiffs’ counsel will go back and look at the emails to see if they did, indeed, have

attachments. If so, they will be produced.

Mr. Isaac’s health problems. Isaac ran the Peak division during all of 2010. Isaac

had medial issues and was hospitalized during 2010. People have told defendant’s

counsel that Isaac was unavailable for work. Plaintiffs’ counsel responded that Isaac

had surgery in the fall of 2010. He was out of the office for 7-10 days. He will testify he

took vacation time as well during those 7-10 days. He was in contact with his office

during that time. It was ORDERED that defendants are free to identify the period of

medical leave and provide a declaration under penalty of perjury of facts demonstrating

difficulty communicating with Isaac regarding Peak’s business. If that evidence indi-

cates a business concern, plaintiff Isaac must bring his medical records to his deposition

2Plaintiffs’ counsel said that these are communications among their clients sum-

marizing advice given Isaac by his attorney.


Case: 2:11-cv-00450-JLG-MRA Doc #: 42 Filed: 05/21/13 Page: 4 of 4 PAGEID #: 430

for reference if needed.

Ebix’s Interrogatory No. 7. The interrogatory seeks the identity of customers who

ceased doing business with Peak or did less business with it because of something Ebix

did and the identity of all persons who have knowledge of the facts demonstrating the

above. It is ORDERED that plaintiffs’ answer Interrogatory No. 7 by identifying all 2009

customers who ceased doing business with Peak during 2010 and identifying customers

who purchased less product from it during 2010 because of communications from Ebix

that in some way interfered with Peak’s ability to sell product to the customer. Further,

plaintiffs must identify each person having knowledge of facts establishing the above.

Mr. Isaac’s email accounts. Plaintiff Isaac is ORDERED to identify each of his

email accounts.

Other Ebix earn out agreements. Defendant’s counsel said that there remains

some dispute about his client’s production. Defendant maintains that most of the

entities were either paid an earn out or did not, but did not file suit.

s/Mark R. Abel
United States Magistrate Judge