IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

PHYSICIANS HEALTHSOURCE, INC., 

an Ohio corporation, individually and as 

the representative of a class of similarlysituated persons, 

 Plaintiff, 

 v. 

ALLSCRIPTS HEALTHCARE 

SOLUTIONS, INC. and ALLSCRIPTS 

HEALTHCARE, LLC 

 Defendants. 

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No. 12-cv-03233 

Hon. Magistrate Judge Cole 

DEFENDANTS’ MOTION TO COMPEL CERTAIN DISCOVERY RESPONSES, 

REQUEST FOR SANCTIONS AND MEMORANDUM IN SUPPORT

Defendants ALLSCRIPTS HEALTHCARE SOLUTIONS, INC. and ALLSCRIPTS 

HEALTHCARE LLC (collectively, “Allscripts”), by and through their attorneys, move for an 

order compelling Plaintiff PHYSICIANS HEALTHSOURCE, INC. (“Plaintiff” or “PHI”), to 

properly respond to Allscripts’ written discovery as set forth in more detail below. In addition, 

because PHI has failed to retain documents during the course of this litigation and has given false 

statements in sworn discovery responses, Allscripts respectfully requests appropriate sanctions. 

In support of this motion, Allscripts states as follows: 

I. INTRODUCTION 

PHI has filed no fewer than 21 lawsuits all over the country alleging violations of the 

Telephone Consumer Protection Act (“TCPA”), including against entities who supplied goods 

and services to PHI like Allscripts. PHI expressly consented to receive solicitations from 
2 

Allscripts via fax1

 and yet is trying to claim in this lawsuit that Allscripts never had permission 

to send unsolicited faxes to PHI. 

This lawsuit appears to be nothing but a lark to PHI and its lead counsel, Anderson & 

Wanca, both of whom have indiscriminately sued many businesses and previously have been 

sanctioned and criticized for their conduct in litigation, including in connection with discovery.2

 

In contrast, Allscripts has been forced to defend this lawsuit at great cost and burden. For 

example, over the course of discovery in this litigation, Allscripts has responded to several 

rounds of interrogatories, requests for admission, and document requests from Plaintiff. In 

particular, Allscripts has now completed three rounds of document productions, encompassing 

data for twenty (20) custodians, and over 22,250 pages of documents, all searched, processed and 

produced at Allscripts’ sole cost and expense. (See Kiser Decl. ¶ 2.)3

At a minimum, a serial plaintiff like PHI (who has been hoarding faxes in anticipation of 

filing lawsuits since at least 2008) should have sufficient courtesy and respect for the legal 

process to provide honest and complete responses to discovery that facilitate (rather than hinder) 

the truth-seeking process, and to and to exercise due care with important evidence. 

Unfortunately, however, this motion is necessary because PHI has provided demonstrably false 

discovery responses to Allscripts under oath, has failed to respond to Allscripts’ discovery 

 

1 See Dep. Tr. G. Monhollen, May 7, 2015, Ex. A hereto at 69:14-70:10 (PHI’s former office 

manager, Gearline Monhollen, testifying that Allscripts would ask her if they could send 

information over by fax, and she would answer, “Yes”). 

2 See, e.g., Sandusky Wellness Center, LLC v. Medco Health Solutions, Inc., No. 14-4201, at *3 

(6th Cir. June 3, 2015) (affirming grant of summary judgment to defendants and noting district 

court’s warning to plaintiff “‘not to file similar fruitless litigation in the future’ or else the court’s 

‘colleagues [would] respond appropriately.’”) (Ex. B hereto); Memorandum Opinion, Physicians 

Healthsource, Inc. v. Alma Lasers, Inc., Case No. 1:12-cv-04978, ECF. No. 101 (N.D. Ill. Nov. 

20, 2014) (Ex. C hereto) (granting defendant’s motion to strike untimely produced documents 

and supplemental expert declaration under Federal Rule of Civil Procedure 37). 

3

 The declaration of Allscripts attorney Livia M. Kiser (“Kiser Decl.”) is filed concurrently 

herewith. Attached thereto are Allscripts’ exhibits, referenced as “Ex.” 
3 

requests in good faith, and has destroyed, deleted or carelessly lost track of documents. 

II. BACKGROUND

A. PHI’s Prior Sworn Discovery Responses Were Later Proven Demonstrably 

False 

 Allscripts served discovery upon PHI to which PHI substantively responded, swearing 

the responses were true, and then Allscripts subsequently learned through its own investigation 

and/or through subsequent interactions with PHI or third parties that PHI’s responses were, in 

fact, demonstrably false. For example: 

• In or around October 9, 2013, Allscripts served an interrogatory upon PHI asking for “all 

television, radio and printed publications and any internet sites or worldwide web pages 

. . . in which or on which your telephone number or numbers used by you for the receipt 

of facsimile transmissions have been disclosed, published or otherwise made available, 

including, but not limited to, directories and advertisements.”4 After stating some 

objections, Plaintiff responded with a single word: “None.” (See Pl’s. Ans. to Def’s. 

First Set of Interrogatories, Ex. D hereto at No. 17.)5 PHI’s response, however, is 

inaccurate, if not deliberately false: as Allscripts recently found out as a result of doing 

its own research, Plaintiff’s facsimile number, (513) 922-2009, is all over the internet, 

and has obviously affirmatively been placed there by Plaintiff. (See, e.g., Ex. E hereto 

(ALLSCRIPTS021907); Ex. F hereto (ALLSCRIPTS021927); and Ex. G hereto 

(ALLSCRIPTS021943).)6

• In another interrogatory, Allscripts asked PHI to identify “any other person, business, 

corporation, company or unincorporated business entity that you know also used the 

number (513) 922-2009 to send or receive facsimile transmissions during the Time 

 

4

 Unless otherwise indicated, emphasis throughout is supplied. 

5

 In connection with PHI’s responses, PHI submitted a sworn verification, swearing the 

responses were true and accurate under penalty of perjury. (See Ex. D at p. 10.) 

6

 Plaintiff’s counsel then had the temerity to ask Allscripts to produce the evidence it uncovered 

of PHI’s false statements, which Allscripts did do. (See L. Fogel E-Mail, Apr. 27, 2015, Ex. H 

hereto at 1.) 
4 

Period.” PHI responded under penalty of perjury with one word: “None.” (See Ex. D at 

No. 22.) Again, this statement was plainly false when made: Allscripts’ independent 

research reveals that a number of persons besides PHI identify (513) 922-2009 as their 

fax number. (See, e.g., Ex. I hereto (ALLSCRIPTS021874) and Ex. J hereto 

(ALLSCRIPTS021880).)7 

• Allscripts also asked PHI to “[i]dentify any efforts you made to unsubscribe to any 

facsimiles received during the last five years.” PHI responded with the following sworn 

statement: “see list of TCPA cases filed by Plaintiff,” as though implying that PHI had 

sought to unsubscribe in each case that it had filed. (See Ex. D at No. 27.) About 5 

months prior, however, Dr. John Ruch (the same individual who verified this 

interrogatory response) testified that PHI had never sent a notice asking to opt out of 

receiving an advertising fax. (See Dep. Tr. J. Ruch, May 28, 2013, Ex. L hereto at 95:14-

97:1.) Thus, the sworn interrogatory response was patently misleading (if not an outright 

lie). 

• On or around July 3, 2014, Allscripts requested PHI produce “all fax logs . . . including 

but not limited to fax logs8 for the numbers (513) 922-2009 and/or (513) 347-2735.” On 

August 21, 2014, PHI swore under oath that it “has been unable to locate any responsive 

documents.” (See Pl’s. Resps. to Def’s. Second Set of Doc. Req., Ex. M hereto at No. 1.) 

But PHI’s answer was knowingly false when made: as Allscripts recently found out upon 

review of the docket in the case captioned Physicians Healthsource, Inc. v. Alma Lasers, 

Inc., Case No. 1:12-cv-04978 (N.D. Ill.) (Kocoras, J. presiding) (“Alma Lasers”), 

Plaintiff already had produced fax logs in that case that were responsive to Allscripts’ 

 

7

 Dr. Martinez retired in 2011, so this webpage featuring Dr. Martinez was certainly online when 

these interrogatories were propounded in 2013. Moreover, PHI witness Kathleen Curtis testified 

in February 2013 that Comprehensive Pain Solutions was receiving facsimiles at (513) 922 [sic]-

2009, but eight months later PHI still swore that there were no other entities or persons besides 

PHI receiving facsimiles at that number. (See Dep. Tr. K. Curtis, Feb. 21, 2013, Ex. K, hereto at 

26:21-27:4.) 

8

 A fax log, also referred to as a fax report or fax journal, is a history of received and sent faxes. 
5 

request when it falsely stated it had no responsive documents. (Ex. C at 2.) Notably, 

PHI was subsequently sanctioned in Alma Lasers for curiously “finding” and 

subsequently producing an additional fax log that happened to contain the three faxes at 

issue in that case after defendant pointed out that nowhere in the fax logs produced was 

there a record of PHI having actually received those faxes. (See id. at 2-4, 10-11.) But at 

the exact same time it was finding and producing fax logs in Alma Lasers, it was falsely 

telling Allscripts that it had none. 

B. PHI Continues To Fail To Fully And Fairly Respond To Allscripts’ 

Discovery Requests 

 Allscripts served its Second Set of Interrogatories to Plaintiff (“Interrogatories”) and 

Third Set of Requests for Admission (“Requests for Admission”) to Plaintiff approximately five 

months ago, on January 28, 2015. The topics addressed within the Interrogatories and Requests 

for Admission go to the heart of this case, including Plaintiff’s extensive past business 

relationship with Allscripts and Allscripts’ defense that Plaintiff provided prior express invitation 

and/or permission to receive facsimile transmissions from Allscripts. Plaintiff requested multiple 

extensions to respond to Allscripts’ Interrogatories and Requests for Admission. Allscripts 

granted each of these requests without objection. 

1. First Meet And Confer 

 On March 16, 2015, Plaintiff served its Answers to Defendants’ Second Set of 

Interrogatories and Responses and Objections to Defendants’ Third Set of Requests for 

Admission (Ex. N hereto and Ex. O hereto, respectively) (collectively, “Responses and 

Objections”). PHI’s responses were woefully inadequate. On March 20, 2015, counsel for 

Allscripts sent Plaintiff’s counsel a letter advising same. (See L. Fogel Letter, Mar. 20, 2015 

(“March 20th Letter”), Ex. P hereto.) Allscripts’ March 20th Letter also addressed Plaintiff’s 

failure to produce the “fax logs.” (See id. at 4.) The March 20th Letter requested a conference in 
6 

accordance with Rule 37(a) of the Federal Rules of Civil Procedure and Local Rule 37.2 (a 

“Meet and Confer Conference”) to address the enumerated deficiencies. 

 Defendants received no response from Plaintiff until March 27, 2015. (See L. Fogel EMail, Mar. 27, 2015, Ex. Q hereto at 3-4.) The parties then scheduled a Meet and Confer 

Conference on March 30 via telephone. (See Kiser Decl. ¶ 3.) During the Meet and Confer 

Conference, counsel for Defendants discussed the deficiencies in Plaintiff’s responses. 

Plaintiff’s counsel stated that while it would “stand” on some of its objections, it would review 

the Responses and Objections and respond to Defendants in the next 7-10 days. (See Ex. Q at 1.) 

2. Second Meet And Confer 

Two weeks later, on April 13, 2015, Plaintiff’s counsel contacted Allscripts’ counsel and 

requested more time. On April 27, 2015, counsel for the parties conducted a second Meet and 

Confer Conference to discuss Plaintiff’s status in reviewing and potentially amending Plaintiff’s 

Responses and Objections. (See Kiser Decl. ¶ 4.) The parties discussed the following: 

• Plaintiff stated that it intended to amend certain of its responses and anticipated serving 

these amended responses within approximately one week. 

• For the other responses, Plaintiff stated that it would stand on its objections. In 

particular, Plaintiff objected to the relevance of Allscripts’ Requests for Admission that 

pertained to Plaintiff’s purportedly “private” fax number (513) 347-2735 on the 

purported basis that no fax advertisements at issue in this case were sent to that fax 

number and therefore requests regarding that fax number seek irrelevant information and 

are not likely to lead to the discovery of relevant information. (See Ex. O at General 

Objection No. 10. See also Ex. H at 1 (“[W]ith respect to those Requests for Admission 

pertaining to the fax number (513) 347-2735, you stated that Plaintiff similarly intends to 
7 

stand on its relevance objections, assuming none of the faxes attached to Plaintiff’s 

Complaint were sent to this number.”).) 

• After first denying their existence and then realizing the existence of the fax logs was a 

matter of public record, Plaintiff stated that it had identified fax logs responsive to 

Allscripts’ requests, was still in the process of reviewing them, and anticipated producing 

them shortly. (See Ex. H at 1.) 

• The parties also discussed Allscripts’ Requests for Admission that pertained to the public 

availability of Plaintiff’s fax number. As noted above, PHI had previously sworn that it 

had not published its facsimile number ((513) 922-2009) and that there was no place 

where (513) 922-2009 was publicly available. (See supra at 3.) After Allscripts’ counsel 

disclosed through basic internet searching Allscripts could prove that (513) 922-2009 was 

available publicly, and was specifically made available by Plaintiff in a classified 

advertisement that invited facsimiles to this number, Plaintiff’s counsel asked Allscripts 

to produce this information, which Allscripts promptly did. (See Ex. H at 1.) 

At the conclusion of the April 27, 2015 Meet and Confer, Allscripts’ counsel requested that the 

amended answers and the fax logs be produced by Plaintiff prior to the deposition of a thirdparty witness, PHI’s former office manager Gearline Monhollen, which was scheduled for May 

7, 2015. Plaintiff agreed to do so. 

 On May 1, 2015, Plaintiff’s counsel produced 1165 pages of fax logs and, on Wednesday, 

May 6, the day before Ms. Monhollen’s deposition, Plaintiff issued its Amended Answers to 

Allscripts’ Interrogatories and Amended Responses and Objections to Allscripts’ Requests for 

Admission (Ex. R hereto and Ex. S hereto, respectively) (collectively, “Amended Responses and 

Objections”). 
8 

C. Third Meet And Confer 

 On May 22, 2015, the parties conducted a third Meet and Confer Conference by 

telephone. (See Kiser Decl. ¶ 5.) After PHI confirmed it was not willing to further supplement 

its discovery responses any further, Defendants’ counsel informed Plaintiff’s counsel that 

Defendants would be filing a motion to compel. 

 During the conference, Defendants’ counsel also raised concerns regarding Plaintiff’s 

production of its fax log. Specifically, Defendants’ counsel informed Plaintiff that a number of 

dates were missing from the fax log, including dates that had previously been produced by 

Plaintiff in the aforementioned Alma Lasers case, see supra at 4. 

D. Relevant And Responsive Documents Are Missing 

 On June 1, 2015, Plaintiff produced an additional 182 pages of fax logs, some of which 

were duplicative of Plaintiff’s prior production, and some of which were produced for the first 

time. There are still days missing from the fax log production, but Plaintiff’s counsel has stated 

that PHI no longer has the missing fax log pages in its possession, custody, or control because it 

may have produced “originals” in the Alma Lasers case without keeping any copies, or 

individuals working at PHI may have discarded the pages. (See Kiser Decl. ¶ 6.) Whether the 

documents are unavailable because PHI mistakenly produced originals in Alma Lasers (and for 

some undisclosed reason, copies cannot be obtained), or PHI carelessly discarded the missing 

pages, the bottom line is that PHI concealed (and then got rid of) important evidence. 

 As required by Local Rule 37.2, the parties consulted by telephone, email, and letter 

correspondence in a good faith attempt to resolve differences but were unable to reach an accord. 

Allscripts now moves for an order (1) compelling PHI to provide complete answers to specific, 

written discovery and (2) issuing appropriate sanctions to PHI for making false statements under 
9 

oath and for failing to preserve important evidence. 

III. ARGUMENT

Under Federal Rule of Civil Procedure 26(b)(1), parties have broad power to discover 

information “regarding any nonprivileged matter that is relevant to any party’s claim or defense . 

. . .” See also Oppenheimer Fund, Inc. v. Sanders ̧ 437 U.S. 340, 351 (1978) (the federal notice 

pleading system contemplates that parties will have broad discovery to investigate facts and to 

help define and clarify the issues); United States v. Farley, 11 F.3d 1385, 1390 (7th Cir. 1993) 

(same). Further, the burden rests upon the objecting party to show why a particular discovery 

request is improper. See, e.g., Osada v. Experian Info. Solutions, Inc., 290 F.R.D. 485, 494 

(N.D. Ill. 2012); Parvati Corp. v. City of Oak Forest, No. 08 C 702, 2010 WL 2836739, at *1 

(N.D. Ill. July 19, 2010) (Ex. T hereto). 

Further, “[w]here any party acts inappropriately and causes his opponent to incur 

needless costs to secure compliance with discovery obligations, Rule 37 provides a remedy and 

should not receive a grudging application.” See Fudali v. Napolitano, 283 F.R.D. 400, 404 (N.D. 

Ill. 2012) (Cole, J.). “[A] ‘formal, written order to comply with discovery is not required’ for a 

court to impose sanctions ... where a party violates the rules governing discovery.” Rhodes v. 

LaSalle Bank, N.A., No. 02 C 2059, 2005 WL 281221, at *2 (N.D. Ill. Feb. 1, 2005) (citation 

omitted) (Ex. U hereto). Moreover, “[i]n addition to Rule 37, courts have ‘inherent powers to 

sanction a litigant for bad-faith conduct . . . .’” Id. (citations omitted). A court will “presume 

bad faith and prejudice when a party” lies in interrogatory responses or withholds, destroys, or 

alters documents sought in a quest for production of documents under Rule 26. Id. at *3. 

A. Plaintiff Should be Compelled to Provide Complete Answers to Defendants’ 

Discovery 

As illustrated above, and despite Allscripts’ efforts to reach a resolution with Plaintiff 
10 

through multiple Meet and Confer conferences and patiently allowing Plaintiff nearly two 

months to amend its Responses and Objections, many of Plaintiff’s answers remain woefully 

inadequate. As explained below, Plaintiff has failed to provide complete answers to Allscripts’ 

Requests for Admission (each an “RFA”), instead relying on objections that are without merit. 

1. Request for Admission 34. In RFA 34, Allscripts requests PHI admit 

that it never sent to any person or business entity, including Allscripts, a request to stop receiving 

facsimiles (i.e., “an opt-out request”) that was compliant with the requirements enumerated 

under 47 C.F.R. § 64.1200(a)(4)(v). PHI objects to this RFA as “irrelevant.” (See Ex. O at p. 9.) 

Contrary to PHI’s assertion, however, this RFA is highly relevant as it goes directly to 

Allscripts’ defense that it sent unsolicited facsimiles to Plaintiff with Plaintiff’s prior express 

invitation and/or permission, and that Plaintiff never rescinded such permission, which it cannot 

have done unless it complied with the requirements enumerated under 47 C.F.R. § 

64.1200(a)(4)(v). Plaintiff does not, and cannot, dispute this point, and has admitted in 

deposition testimony in at least one other case that it never sought to rescind consent. (See supra 

at 4.) Plaintiff should be compelled to substantively respond to this RFA. 

2. Requests for Admission 36-37, 40-41, 44-45, 48-49, 52-53, 56-57, 60-61, 

64-65, 68-69, 72-73, 98, 118. Plaintiff should likewise be required to provide substantive 

answers to RFAs 36-37, 40-41, 44-45, 48-49, 52-53, 56-57, 60-61, 64-65, 68-69, and 72-73, all 

of which pertain to Allscripts’ defense of prior express invitation and/or permission. 

Specifically, these RFAs ask Plaintiff to admit that certain individuals providing patient care at 

PHI gave permission to one or more Persons to send facsimiles to Plaintiff’s fax numbers. (See 

Ex. O at pp. 9-24.) Plaintiff vaguely objects to these Requests as irrelevant, stating that this 

information “is not relevant and will not lead to the discovery of relevant information as to the 
11 

issue of whether Defendants had prior express invitation or permission from Plaintiff to send 

Plaintiff fax advertisements.” (See, e.g., id. at No. 44.)9 Similarly, RFAs 98 and 118 ask 

Plaintiff to admit that it does not know, nor has it done any investigation to verify, whether any 

person providing patient services at PHI or working as an independent contractor at PHI gave 

permission or invited any Allscripts Entity to send facsimiles to it. (See id. at pp. 30, 34.) PHI 

again objects to these RFAs, contending that whether these individuals gave Allscripts 

permission to send facsimiles is somehow not relevant (a frankly absurd position). (See id.) 

Moreover, PHI objects to nearly all of the RFAs because “Defendants’ advertisements did not 

contain a compliant opt-out notice and therefore the defenses of [established business 

relationship] and/or [prior express invitation or permission] are unavailable as a matter of law.” 

(E.g., id. at pp. 25-28, 32-34. See also id. at pp. 9-24 (nearly identical objections).) 

Plaintiff’s objections are erroneous on all counts and should be overruled. The RFAs are 

relevant to the very issue of whether one or more individuals using the fax number (513) 922-

2009 gave Allscripts’ prior express invitation and/or permission to send unsolicited facsimiles. 

Documents produced in this litigation – which Allscripts has repeatedly pointed out to PHI – 

evidence that individuals providing patient services at PHI, as well as individuals who appear to 

be independent contractors, did, in fact, communicate with Allscripts during the relevant time 

period. Significantly, these same documents show that at least some of these individuals did, in 

fact, ask Allscripts to send information by fax about products and services available for sale, 

including computers, printers, and other office equipment. (See Ex. P at 3-4; see also Ex. A at 

 

9

 For those Requests specifically pertaining to fax number (513) 347-2735, Plaintiff objects “to 

the extent no fax advertisements at issue in this case were sent to that fax number and therefore 

requests regarding that fax number seek irrelevant information and are not likely to lead to the 

discovery of relevant information.” (See, e.g., Ex. O at No. 37.) This is an inadequate basis for 

an objection. The information is probative because (among other reasons) it tends to show that 

Plaintiff did, in fact, give out its fax numbers as a matter of practice. 
12 

84:20-89:23.) Even further, by Plaintiff’s own admission, many of these individuals were 

allowed to use and thus receive facsimiles at Plaintiff’s fax numbers in connection with their 

work at PHI. (See Ex. S at pp. 1-9.) For Plaintiff to now dispute the relevance of whether these 

individuals gave permission to receive facsimiles, including from Allscripts, is implausible at 

best. At a minimum, if Plaintiff does not know whether permission was provided by these 

individuals, Plaintiff should be required to admit that.10 

B. PHI Should Be Sanctioned For Repeatedly Serving Untrue, Delayed And 

Incomplete Discovery Responses, And For Failing To Preserve Important 

Evidence

As is evident from the record, PHI has repeatedly failed to adequately investigate and 

truthfully respond to Allscripts’ written discovery, has affirmatively misstated the facts in sworn 

responses, and even in some instances has withheld and/or has not preserved relevant documents. 

These are straightforward – and serious – violations of Rule 37. These violations are properly 

sanctioned, because not only do they hinder the truth-seeking process, but as a consequence, 

Allscripts has been forced to spend a great deal more money on discovery than it otherwise 

would have. 

Sanctions are especially appropriate in this case because PHI never stopped providing 

sworn responses to written discovery that are, in fact, not true. For example, Allscripts, via its 

most recent RFAs (75-78 and 111-13), asked Plaintiff to admit that its fax numbers were publicly 

 

10 Moreover, Plaintiff’s contention that it can refuse to substantively respond to these requests 

because Allscripts’ facsimiles purportedly did not contain “compliant opt-out notice[s]” is 

baseless. Whatever the content of the fax, if Allscripts had permission to send it to PHI, PHI 

should have to disclose that. Moreover, as Allscripts has advised both Plaintiff and the Court, 

Allscripts filed a petition with the Federal Communications Commission requesting a retroactive 

waiver from the FCC’s requirement that a specific opt-out notice be included on unsolicited 

facsimile advertisements. Allscripts expects to receive the retroactive waiver consistent with all 

other requesters whose petitions have been ruled upon by the FCC to-date. (Kiser Decl. ¶10). 

The FCC has ruled on the initial round of petitions and requested additional petitions be filed by 

no later than April 30, 2015, after which the FCC is expected to rule on all petitions in the 

second round at once. Id. Once Allscripts receives formal confirmation that it is entitled to the 

retroactive waiver, the opt-out language on the facsimiles will become irrelevant. 
13 

available and, moreover, had previously been published by PHI in a classified advertisement that 

invited persons to send facsimiles to PHI. (See Ex. O at pp. 25-26, 33.) Plaintiff objected to 

each of these Requests, and even falsely denied that its primary fax number (i.e., (513) 922-

2009) was publicly available. (See id. at p. 33.) As a result, Allscripts was forced to expend 

additional resources to expose PHI’s falsehood and to demonstrate to Plaintiff that Allscripts 

knew that PHI had made its fax numbers publicly available. (See Ex. H at 1.) It was only after 

Allscripts exposed Plaintiff’s deception that Plaintiff finally agreed to change its response to 

acknowledge that it had, in fact, published (513) 922-2009. 

But it is Plaintiff’s delayed and incomplete production of its fax log that is perhaps the 

most disturbing. When Allscripts originally requested from Plaintiff copies of fax logs that were 

created during the relevant time period, initially Plaintiff stated falsely under oath that there were 

none, notwithstanding the fact that, in the Alma Lasers case, Plaintiff was admitting such logs 

exist and producing them. (See supra at 4.) After Allscripts undertook the time and expense to 

expose Plaintiff’s deception, see Ex. P at 4, Plaintiff suddenly changed its tune, informing 

Allscripts that it had located fax logs from the relevant time period after all. (See supra at 7.) 

Indeed, PHI subsequently produced 1165 pages of fax logs. But even this production was not 

complete. When pressed by Defendants that certain dates appeared to be missing, Plaintiff 

supplemented its production with an additional 182 pages of fax logs, but also admitted pages 

have been carelessly lost or destroyed.11 

 

11 In addition, and despite Plaintiff’s multiple productions, the fax log still contains extensive 

gaps in periods of time, thus raising questions as to the veracity of Plaintiff’s alleged practice of 

collecting and sorting purportedly wanted from unwanted facsimiles. For example, PHI’s fax 

log contains large gaps between November 5, 2008 and April 13, 2009; and April 28, 2010, and 

November 30, 2010. In point of fact, nearly one-half of the faxes attached to PHI’s Complaint 

cannot be accounted for on the fax logs, either because they do not appear on the fax log or 

because the fax log for the particular date PHI allegedly received the fax is missing. 
14 

Indeed, Plaintiff’s fax log production only raises more questions than answers. For one, a 

number of the faxes attached to the complaint do not appear on Plaintiff’s fax log, calling into 

question whether Plaintiff actually received those faxes (and perhaps explaining why the logs 

were not produced in the first place). In addition, a number of the alleged faxes attached to the 

Complaint do not actually contain Plaintiff’s fax legend at the top of the fax, suggesting that the 

page was not, in fact, received by Plaintiff’s facsimile machine. (See, e.g., ECF. 78 at PageID 

#568 (fax dated Aug. 12, 2012 attached to the Complaint).) Moreover, while Plaintiff has 

objected to many of Defendants’ requests because (according to Plaintiff) none of the faxes at 

issue in this case were sent to Plaintiff’s “private” fax number ((513) 347-2735), Plaintiff’s 

production curiously includes numerous fax log pages for the fax machine associated with the 

number (513) 347-2735. This raises questions as to why Plaintiff created (and then produced) 

fax logs for faxes sent to a “private” fax number that PHI contends is not publicly available. 

IV. CONCLUSION

For the reasons set forth above, Allscripts respectfully requests entry of an order 

compelling Plaintiff to: (a) provide complete, substantive responses to Allscripts’ Requests for 

Admission 34, 36-37, 40-41, 44-45, 48-49, 52-53, 56-57, 60-61, 64-65, 68-69, 72-73, 98, and 

118; (b) undertake a good faith search (including by request to opposing counsel in Alma Lasers 

and other cases) to find and produce in this litigation any outstanding fax logs from the relevant 

time period to the extent not already produced; and (c) participate in discovery in good faith 

going forward. Allscripts respectfully also requests the Court sanction PHI and its counsel for 

their repeated violations of Fed. R. Civ. P. 37 as set forth herein, including an award to Allscripts 

of the fees and costs it has incurred as a result of the conduct described herein. Allscripts 

respectfully requests such other, further relief this Court deems appropriate. 
15 

Dated: June 29, 2015 Respectfully submitted, 

By: /s/ Livia M. Kiser 

SIDLEY AUSTIN LLP 

 

 Livia M. Kiser 

 lkiser@sidley.com 

 Lawrence P. Fogel 

 lawrence.fogel@sidley.com 

 Andrew J. Chinsky 

 achinsky@sidley.com 

 One South Dearborn 

 Chicago, Illinois 60603 

 (t): (312) 853-7247 

 (f): (312) 853-7036 

Counsel for Allscripts Healthcare Solutions, 

Inc. and Allscripts Healthcare LLC 
16 

CERTIFICATE OF SERVICE

I, Andrew J. Chinsky, hereby certify that on June 29, 2015, I caused a copy of the 

foregoing to be electronically filed with the Clerk of the United States District Court for the 

Northern District of Illinois, using the CM/ECF system, which will send notification of such 

filing to all attorneys of record. 

 /s/ Andrew J. Chinsky 

 Andrew J. Chinsky