UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

PHYSICIANS HEALTHSOURCE, INC., 

individually and as the representative of a class of 

similarly-situated persons, 

 Plaintiff, 

 v. 

ALLSCRIPTS-MISY’S HEALTHCARE 

SOLUTIONS, INC., ALLSCRIPTS, LLC, 

ALLSCRIPTS HEALTHCARE SOLUTIONS, 

INC., and ALLSCRIPTS HEALTHCARE, LLC 

 Defendants. 

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No. 12-cv-03233 

Magistrate Judge Cole 

PLAINTIFF’S REPLY MEMORANDUM OF LAW 

IN SUPPORT OF FIRST MOTION TO STRIKE 

Plaintiff, Physicians Healthsource, Inc. (“Plaintiff” or “PHI”), submits this Reply 

Memorandum of Law in Support of its First Motion to Strike.1

Argument 

I. Allscripts failed to timely disclose the Declarants; their Declarations should be 

stricken and they should be barred from presenting evidence in this case. 

It is undisputed Allscripts failed to disclose the nine “Allscripts” Declarants and the five 

A-S Medications Declarants (collectively, “the Declarants”). Allscripts in its response offers no 

Rule 37(c)(1) “substantial justification” for its failure to disclose these Declarants. Instead, 

Allscripts argues the Allscripts Declarants were “otherwise made known to the other parties during 

                                                            

1 Plaintiff has filed two motions to strike. The first was filed in response to Allscripts’ opposition to class 

certification and moves to strike the Allscripts and A-S Medications Declarants. (Doc. 243). The second 

was filed in response to Allscripts’ motion for summary judgment and moves to strike the Declaration of 

Judi Desorcie, bar Ms. Desoircie as a witness in the case, and bar Allscripts’ use of the Salesforce database, 

because it has not been produced in its entirety. (Doc. 251). Allscripts has filed a consolidated response to 

these motions. (Doc. 266). Plaintiff submits this reply in support of its first motion to strike, and will 

submit by August 12, 2016, its reply in support of second motion to strike, in accordance with this Court’s 

schedule and direction. 

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the discovery process or in writing,” see Rule 26(e)(1)(A), because Allscripts “produced the fax 

numbers of the Declarants in 2013 via Allscripts production of the BFX Reports.” (Allscripts 

Resp. at 1, 2, 9). Allscripts’ argument is unsupportable. 

The three BFX Reports referenced by Allscripts (for the January 7, 2010, December 1, 

2011, and December 5, 2011 faxes) demonstrate that 17,781 fax targets were successfully 

transmitted a fax advertisement by Allscripts. (Doc. 204-1, Page ID 3158). Allscripts’ contention 

that the nine Allscripts Declarants were “made known” to Plaintiff because their fax numbers were 

contained within those 17,781 fax numbers is absurd. The “mere appearance” of the nine fax 

numbers among 17,781 fax numbers in the three fax transmission logs produced by Allscripts is 

“plainly insufficient to satisfy the requirements of Rule 26 for identifying potential witnesses.” 

Wallace V. U.S.A.A. Life General Agency, Inc., 862 F. Supp. 2d 1062, 1065 (D. Nev. 2012). The 

A-S Medications Declarants are even further removed as they were simply lifted from a different 

case, Physicians Healthsource v. A-S Medications (“A-S Medications”), currently pending before 

Judge Gottschall, and deposited before this Court by Allscripts. 

In an effort to explain its failure to disclose the Declarants, Allscripts manufactures an 

argument that is at odds with what Allscripts previously stated in its opposition to class 

certification, when the Allscripts Declarants first made their appearance in this case. In its response 

to the motion to strike, Allscripts argues that “the Declarants, all of whom are Allscripts customers 

or prospects, were identified from a BFX Report for a fax that PHI did not attempt to add to this 

case until several months after the close of fact discovery, when Plaintiff filed its motion for class 

certification and substantially modified its class definition to include the ‘January 7, 2010 fax.’” 

(Allscripts Resp. at 1) (emphasis added). Compare the aforementioned bold-faced italicized 

language in Allscripts’ response to the motion to strike to that contained in Allscripts’ opposition 

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to class certification: “. . . the policy is also confirmed by declarations submitted herewith from 

numerous ‘absent’ proposed class members identified from the BFX Reports for Class B who 

swear that they too consented to receive fax ads from Allscripts.” (Doc. 215, Page ID 4419) 

(emphasis added). Thus, as Allscripts’ searches for an after-the-fact excuse for its nondisclosure, 

the plural “BFX Reports” has been transformed to the singular “BFX Report” from the January 7, 

2010 fax. Allscripts’ transparent attempt in this regard only serves to underscore the fact that 

Allscripts has no substantial justification for its nondisclosure and instead set about to create one.2

 

Moreover, Allscripts’ attempt to convey the impression that the nine Allscripts Declarants 

were only located on the BFX Report for the January 7, 2010 fax is at odds with the Declaration 

of Allscripts employee (and attorney) Shannon Cassell, who states that of the nine Allscripts 

Declarants, two – Craig Gillispie and Ann Horsley – also matched entries on the December 1, 2011 

and December 5, 2011 BFX Reports. (Cassell Decl., Doc. 266-13, Page ID 6706, ¶ 11). Thus, 

Allscripts’ claim that it could not know that Plaintiff would seek to certify the January 7, 2010 fax 

until after the close of fact discovery does not explain the failure to disclose the two Declarants 

mentioned above before the May 31, 2016 filing of its opposition to class certification. Moreover, 

as discussed in detail below, Allscripts has always had the BFX Report for the January 7, 2010 

fax, as well as the January 7, 2010 fax itself. If that were not enough, the January 7, 2010 fax was 

expressly addressed in Plaintiff’s expert report (Biggerstaff) served on December 1, 2015, well 

before the expert discovery cutoff, and was also addressed by Allscripts’ expert in his report and 

was specifically mentioned in Biggerstaff’s deposition. See infra. Allscripts’ after-the-fact attempt 

to manufacture an explanation for its non-disclosures collapses under the weight of the facts. 

                                                            

2 For reasons that are unclear, Allscripts failed to include the fax numbers for the Allscripts Declarants, 

making confirmation of Allscripts’ assertion a difficult if not impossible proposition. 

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Again flailing away to explain its nondisclosure, Allscripts states that it “very much objects 

to the purported addition of the January 7, 2010 fax,” arguing it did not appear in PHI’s initial 

disclosures, that it was “never identified” either in Plaintiff’s Rule 26 disclosures or elsewhere, 

that it is “non-existent,” that PHI “substantially modified its class definition to include the ‘January 

7, 2010 fax,’” and that PHI does not have a copy of it and can only “speculate about the fax image 

that was sent.” (Allscripts Resp. at 1, 2, 9, 10). Allscripts’ arguments are factual and legal nonstarters. 

First, Plaintiff alleged the following class in the Amended Complaint: 

All persons who (1) on or after April 27, 2008, (2) were sent one or more telephone 

facsimile messages of material advertising the commercial availability of any 

property, goods, or services by or on behalf of Defendants, (3) from whom 

Defendants did not obtain prior express permission or invitation to send those faxes, 

(4) with whom Defendants did not have an established business relationship, or (5) 

which advertisement did not display a proper opt-out notice. 

(Am. Compl., Doc. 78 ¶ 17). The January 7, 2010 fax clearly fits within that class definition and 

should hardly come as a surprise to Allscripts and certainly does not “substantially alter[]” the 

class definition. 

 Second, the “non-existent” January 7, 2010 fax is attached to Plaintiff’s amended/corrected 

motion for class certification as Group Exhibit 1-32 (Doc. 204-3, Page ID 3210). The “nonexistent” January 7, 2010 fax was produced and Bates’-stamped by Allscripts as 

“Allscripts002239.” (Id.) Allscripts also produced a BFX Report for the January 7, 2010 fax, and 

Bates’-stamped it “Allscripts 08958.” (Doc. 204-4, Page ID 3214). The WestFax invoice for the 

January 7, 2010 fax is contained at Doc. 204-5, Page ID 3329, and lists Michelle Westmoreland’s 

name and a quantity of 16,795. That amount, 16,795, is listed in Biggerstaff’s report as the amount 

of successful faxes for WestFax Sequence No. BFX-01282172. (Biggerstaff Expert Report, Doc. 

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204-8, Page ID 3485). Allscripts’ repeated representations to the Court of the “non-existent” 

January 7, 2010 fax are completely unsupportable. 

Third, Plaintiff is not required to print a fax to have a cause of action under the TCPA, as 

the Seventh Circuit made clear in Holtzman v. Turza, 728 F.3d 682, 684–85 (7th Cir. 2013): 

To the extent Turza contends that each recipient must prove that he printed the fax 

(wasting paper) or otherwise suffered monetary loss, he is wrong on the law. The 

statute provides a $500 penalty for the annoyance. 47 U.S.C. § 227(b)(3)(B). Even 

a recipient who gets the fax on a computer and deletes it without printing suffers 

some loss: the value of the time necessary to realize that the inbox has been 

cluttered by junk . . . 

To the extent Turza contends each recipient must prove that his fax machine or 

computer received the fax, he is right on the law but wrong on the facts. The record 

establishes which transmissions were received and which were not. Top of Mind 

hired MessageVision to send the faxes. It compiled information about which faxes 

were received, and by whom; no reasonable juror could conclude that these data 

are inaccurate.

In short, it cannot be genuinely disputed that Plaintiff was successfully sent the January 7, 

2010 fax, as it appears on the BFX Report for that date, produced by Allscripts in 2013. (See also

Biggerstaff report, Doc. 204-8, Page ID 3484-85, ¶¶ 23-25)). Contrary to Allscripts’ assertion, 

there is no “speculation” whatsoever as to the January 7, 2010 fax. 

Fourth, both Plaintiff’s expert (Robert Biggerstaff) and Allscripts’ expert (Neil Shirk), 

specifically addressed the January 7, 2010 fax in their respective reports. (See Biggerstaff Expert 

Report, Doc. 204-8, Page ID 3484-85, ¶¶ 24, 25; Shirk Expert Report, Doc. 215-11, Page ID 4675, 

¶ 80).3

 Even Allscripts admits it was aware of this fact in its opposition to the motion to strike: 

Rather, in its Certification Motion, PHI added the January 7, 2010 fax after its 

expert conveniently located PHI’s fax number ((513) 922-2009) on a BFX Report 

produced by Allscripts on October 28, 2013. Kiser Decl. ¶ 2. But PHI had never 

amended its Complaint, its Rule 26 disclosures, or its discovery responses to 

include this alleged fax. 

                                                            

3 Expert discovery closed on February 29, 2016. (Doc. 173). 

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(Allscripts Resp. at 6). In addition to the experts’ discussion of the January 7, 2010 fax, Allscripts’ 

counsel specifically asked Biggerstaff about the January 7, 2010 fax at his deposition. (Biggerstaff 

Dep., Feb. 19, 2016, at 217-18, relevant portion attached as Exhibit 5). Allscripts’ characterization 

that Biggerstaff “conveniently” located the January 7, 2010 fax also misses the mark. Allscripts 

had the BFX Report since well before October 2013, and had equal access to the January 7, 2010 

fax, but apparently chose not to search. Moreover, Biggerstaff’s initial expert report was timely 

produced on December 1, 2015. (Doc. 204-8). Biggerstaff analyzed what few fax transmission 

reports were produced by Allscripts and found that the fax sent January 7, 2015, was sent to 

Plaintiff’s fax number. (Doc. 204-8, Page ID 3484-85, ¶ 24-25). That is what experts do. Not 

surprisingly, Allscripts does not complain of other fax transmission logs examined by Biggerstaff 

that did not contain Plaintiff’s fax number. (Id.)4

 In sum, and unlike the disclosure of the nine Allscripts Declarants and the five A-S 

Medications Declarants six months after the close of discovery, the disclosure of the January 7, 

2010 fax (which was always in Allscripts’ possession) is quintessential application of the Rule 

26(e)(1)(A) term “otherwise made known to the other parties during the discovery process or in 

writing.” Fed R. Civ. P. 26(e)(1)(A). Biggerstaff identified the January 7, 2010 fax in his report, 

Shirk addressed it in his report, Allscripts’ counsel asked Biggerstaff about it at his deposition, and 

it is a business record of Allscripts. 

                                                            

4

 Allscripts states in its opposition that after it uploaded the fax image and the list into the WestFax portal 

to transmit a particular fax, that “WestFax would create a BFX Report (i.e., a billing report) in the portal 

available for download.” (Allscripts Resp. at 3). While it is Plaintiff’s position that Allscripts was emailed 

the BFX Reports after the fax broadcast, even Allscripts admits it could have obtained the BFX Reports for 

its fax broadcasts but did not do so, notwithstanding the pendency of the Geismann litigation during most 

of the fax broadcasts at issue in this case. 

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 As to Allscripts’ apparent argument that Plaintiff should have filed an amended complaint 

to change its class definition, the Seventh Circuit’s decision in Chapman v. First Index, Inc., 796 

F.3d 783, 786 (7th Cir. 2015), disposes of such an argument: 

A complaint must contain three things: a statement of subject matter jurisdiction, a 

claim for relief, and a demand for a remedy. Fed. R. Civ. P. 8(a). Class definitions 

are not on that list. Instead, the obligation to define the class falls on the judge’s 

shoulders under Fed. R. Civ. P. 23(c)(1)(B). See Kasalo v. Harris & Harris, Ltd., 

656 F.3d 557, 563 (7th Cir. 2011). The judge may ask for the parties’ help, but 

motions practice and a decision under Rule 23 do not require the plaintiff to amend 

the complaint. 

 Allscripts argues that the “Certification Memorandum is admittedly confusing because 

Plaintiff also dropped four of the faxes attached to the Complaint in addition to adding the January 

7, 2010 fax.” (Allscripts’ Resp. at 5-6). Plaintiff has been unable to locate either BFX Reports 

(fax transmission logs) for the faxes sent on July 9, 2008, July 11, 2008, July 21, 2008, and October 

29, 2008, or WestFax invoices for the broadcasts. In the absence of this evidence, Plaintiff made 

the litigation choice, in this particular case, to not move for class certification as to these faxes. 

II. Plaintiff has been prejudiced due to Allscripts’ failure to disclose the Declarants. 

 Allscripts inadvertently concedes Plaintiff has been harmed and has been prejudiced due 

to Allscripts’ admitted failure to disclose the Allscripts and A-S Medication Declarants when it 

argues that Plaintiff seeks to “persuade the Court to consider important evidence that is very 

problematic” for Plaintiff. (Allscripts Resp. at 1). If Allscripts thought the undisclosed witnesses 

had “important” and “problematic” evidence to offer, it should have disclosed these witnesses. “In 

general, the greater the importance of a witness, the more prejudice is suffered by the defendants 

by not having had the opportunity to depose the witness, seek documents from him or her, or 

question other witnesses about the witness’s activities or knowledge.” LeBada v. New York City 

Dep’t of Educ., 2016 WL 626059, at *6 (S.D.N.Y. Feb. 8, 2016). Allscripts didn’t disclose any of 

the Declarants, and now claims the purported testimony from these undisclosed Declarants is 

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“problematic” for Plaintiff, but at the same time the failure to disclose is not harmful or prejudicial. 

Allscripts can’t have it both ways. 

Moreover, Plaintiff briefed its motion for class certification without any knowledge that 

Allscripts would attempt to rely on the Allscripts and A-S Medication Declarants. It is plainly 

prejudicial to Plaintiff to allow Allscripts to rely on these witnesses when Plaintiff had no 

opportunity to conduct discovery as to these witnesses and when Allscripts failed to even provide 

the fax numbers applicable to these Declarants. “To permit entirely unexplained Rule 26 violations 

to go unsanctioned whenever the evidence at issue is sufficiently important would give parties the 

perverse incentive to spring especially large and surprising disclosures on their adversaries on the 

eve of trial.” LeBada, 2016 WL 626059, at *7. 

While Plaintiff’s position continues to be that the Allscripts Declarations are of no 

evidentiary value, just as the A-S Medications Declarations are of no evidentiary value (Allscripts 

apparently agrees, as the A-S Medications Declarations are unmentioned in Allscripts’ response), 

the fact of the matter is that Allscripts is trying to support its permission defense through 

declarations from undisclosed witnesses. There is simply no excuse for Allscripts’ failure to 

disclose the Declarants, and such conduct requires an answer – the Allscripts and A-S Medications

Declarations should be stricken. 

II. Allscripts’ arguments that Plaintiff was required to conduct a Local Rule 37.2 meet 

and confer prior to moving for sanctions, and that Plaintiff should have called 

regarding additional discovery as to the undisclosed Declarants, fail as a matter of 

law. 

Allscripts argues that “in the month-and-a-half since [it] filed these Declarations, not once 

did Plaintiff contact Allscripts to discuss the Declarations or a plan whereby additional discovery 

might be taken (and if so, what that might be).” (Allscripts Resp. at 2). Allscripts also argues that 

Plaintiff failed to comply with Local Rule 37.2 prior to filing its motions to strike, that it had weeks 

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to do so, and that had it done so, the parties “might have narrowed or even eliminated the need for 

motion practice.” (Id. at 10). Allscripts concludes by stating Plaintiff “offers no justification or 

explanation for its failure to comply, and its failure is fatal to its Motions.” (Id.) 

Contrary to Allscripts’ argument, and as this Court has expressly held, there is no meet and 

confer requirement for a Rule 37(c)(1) motion for sanctions, even under Local Rule 37.2. Finwall 

v. City of Chicago, 239 F.R.D. 494, 500 (N.D. Ill.), objections overruled, 239 F.R.D. 504 (N.D. 

Ill. 2006). In Finwall, this Court stated in response to the same argument made by Allscripts here: 

Unwilling to accept the slightest responsibility for its violations of Judge 

Manning’s deadlines and of the local rules of this court, the plaintiff incredibly 

seeks to shift the focus to the defendants. The argument apparently runs this way: 

all the difficulties could have been resolved by a phone call from the defendants. 

The argument—if it can be called that—is demonstrably wrong. 

Local Rule 37.2’s requirement that parties attempt to resolve disputes before they 

may apply to the court for resolution of the problem applies to motions to compel 

discovery and production of documents, not to motions to bar expert witnesses 

pursuant to Rule 37(c)(1). The defendants are not seeking any discovery, they are 

asking that plaintiff be sanctioned for his failure to provide the required expert 

reports in a timely fashion. The sanction is automatic unless the sanctioned party 

can show that its violation of Rule 26(a) was either justified or harmless. Keach, 

419 F.3d at 639; Salgado, 150 F.3d at 742. 

Moreover, a phone call would have changed nothing. The harm had occurred at 

the time of the late disclosures, and the bell could not be unrung. A call would 

simply have signaled the defendants’ capitulation to the reordering of the discovery 

schedule necessitated by the plaintiff’s rule and discovery closure violations. Local 

Rule 37.2 did not obligate the defendants to be the hapless victims of the plaintiff’s 

unapologetic disobedience to Judge Manning’s discovery schedule. The argument 

that having failed to consult with them before filing there motion to bar precludes 

consideration of the motion is a non sequitur and calls to mind “George Jacques 

Danton’s famous phrase—l’audace, encore de l’audace, toujours de l’audace

(audacity, more audacity, always audacity) . . .” United States v. Walsh, 700 f.2d 

846, 850 (2d Cir. 1983) (parentheses in original).5

                                                            

5 See also Hoffman v. Constructive Protective Services, Inc., 541 F.3d 1175, 1179 (9th Cir. 2008) (“Any 

local rule requiring a conference prior to the court’s imposition of sanctions under Rule 37(c) would be 

inconsistent with Rule 37(c), and therefore unenforceable.”) 

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Here, as in Finwall, Plaintiff is not seeking to compel any discovery; it is asking that 

Allscripts be sanctioned under Rule 37(c)(1) for not disclosing witnesses in a timely manner. Id. 

Here, as in Finwall, it is the Court, not Allscripts, that sets the discovery schedule. Here, as in 

Finwall, Local Rule 37.2 does not obligate Plaintiff to be a “hapless victim” of Allscripts’ 

disregard of the Court’s discovery schedule. Thus, the instant motion to strike, which is automatic 

unless Allscripts can show its disclosure failures were either justified or harmless. Finwall, 239 

F.R.D. at 498; G&G Closed Circuit Events, LLC v. Castillo, 2016 WL 3551634, at * 6 (N.D. Ill. 

June 30, 2016) (citing Novak v. Board of Trustees of S. Ill. U., 777 F.3d 966, 972 (7th Cir. 2015) 

(if the failure to disclose was not substantially justified or harmless, there is no discretion; 

exclusion is mandatory and automatic)).6

 

Here, Allscripts fails on both scores – its failure to disclose was neither justified nor 

harmless. Accordingly, the Allscripts and A-S Declarations must be stricken. 

Allscripts also argues that any prejudice suffered by Plaintiff as a result of Allscripts’ 

untimely disclosures can be cured with no disruption to the trial, and that Plaintiff’s assertion that 

the Allscripts and A-S Declarations must be stricken is “unfounded.” (Allscripts Resp. at 13, 14). 

Allscripts offers that “[d]epending upon how the Court decides the pending motions, if there is 

any dispute remaining, the parties can confer to determine whether any additional discovery is 

warranted and present an agreed-upon plan to the Court for its consideration, as is usual in these 

types of cases.” (Id. at 14). 

 This Court also rejected just such an argument in Finwall, stating: 

Perhaps the most uninformed aspect of the plaintiff’s presentation is the contention 

                                                            

6 In Castillo, the court stated defendants’ “eleventh hour” disclosure was “effectively, a Trojan Horse,” the 

effect of which was to paint the Court into a corner in which it either has to strike the disclosures or extend 

the discovery deadline, a tactic the court found “unacceptable.” Castillo, 2016 WL 3551634, at *7. Here 

the disclosures were six months after the close of discovery. 

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that even if the disclosures were untimely they must be tolerated because there is 

plenty of time before trial for the defendants to hire expert witnesses and depose 

the plaintiff's experts. The argument essentially restructures the Federal Rules of 

Civil Procedure and makes discovery deadlines set by the court irrelevant. The sole 

test is now whether there is time to depose the experts after discovery has closed. 

But that is not the scheme of the Federal Rules of Civil Procedure. 

Under the Federal Rules of Civil Procedure, it is the court's prerogative-indeed, its 

duty-to manage its caseload and enforce deadlines. Reales v. Consolidated Rail 

Corp., 84 F.3d 993, 996 (7th Cir. 1996). It is not the right of a party who chooses 

not to comply with those deadlines to be able to restructure them at will. Nor is it 

the prerogative of the violator to require his victim to accept his largesse in the form 

of allowing discovery to proceed after the deadline set for the close of discovery by 

the court. Late disclosure is not harmless within the meaning of Rule 37 simply 

because there is time to reopen discovery. See Rick, 1994 WL 484633, at *3

(rejecting reopening discovery as a curative); Aon Risk Services, Inc. of Illinois v. 

Shetzer, No. 01-7813, 2002 WL 1989466, *6 (N.D. Ill. Aug. 27, 2002) (rejecting 

argument that late disclosure was harmless because there was time to conduct 

deposition before trial; all discovery was required to be completed before the 

extended discovery); Gregory v. Oliver, No. 00-5984, 2002 WL 31972165, *1 

(N.D. Ill. Dec. 27, 2002) (opportunity to depose expert does not make up for 

inadequate expert report). 

Finwall, 239 F.R.D. at 501. 

Allscripts cites to three out of circuit cases for the proposition that reopening discovery is 

“usual in these types of cases.” (Allscripts’ Resp. at 14). The cases are inapposite. In Adams v. 

City of Montgomery, 2013 WL 5441980, at *1 (M.D. Ala. Sept. 27, 2013), the motion for summary 

judgment which contained an affidavit of an undisclosed witness to authenticate a document was 

filed three months before the close of discovery, and that the court granted the movant additional 

time to conduct discovery on the limited issue. Allscripts itself distinguishes JS Products, Inc. v. 

Kabo Tool Co., 2014 WL 1093107, at *7 (D. Nev. Mar. 19, 2014), by stating the movant failed to 

identify any specific prejudice that could not have been cured through additional discovery and 

“expressly declined to conduct discovery” despite the opportunity to do so. (Allscripts’ Resp. at 

14). Again, Allscripts is simply not permitted to trump this Court’s scheduling order through the 

expediency of nondisclosure. There is no “opportunity” to conduct discovery because discovery 

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closed eight months ago. Allscripts’ reliance on Sauer Inc. v. Lexington Ins. Agency, Inc., 2015 

WL 3544877, at *3 (E.D.N.C. June 4, 2015) suffers from the same presumption, namely, that the 

Court’s scheduling dates can be adjusted at the whim of a non-disclosing party, namely Allscripts. 

This Court made inescapably clear in Finwall that is not the case. 

In short, re-setting a scheduling order eight months after the close of fact discovery, and 

five months after the close of expert discovery, while the parties are briefing class certification and 

Allscripts’ motion for summary judgment is hardly “usual in these types of cases.” Allscripts’ 

offer to extend this Court’s fact discovery cutoff date, which expired on December 4, 2015, eight 

months ago, should be rejected. 

IV. The Protective Order prohibits contact with class members until after a class is 

certified; Allscripts admittedly contacted putative class members for purposes of this 

case. 

In response to Plaintiff assertion in its opening brief that Allscripts “appears” to have 

violated the Protective Order in this case by accessing the BFX Reports for proposed Class B, see

Doc. 243, Page ID 5651, Allscripts states that “Plaintiff’s assertion that Allscripts somehow 

violated the Protective Order by comparing the BFX Reports (produced by Allscripts in discovery 

and derived from Allscripts customers and prospects in Salesforce) with other Salesforce data (data 

also owned by Allscripts) – is shocking in its mendacity.” (Allscripts Resp. at 8, 9). 

Allscripts misses the point. Allscripts, and not Plaintiff, designated the BFX Reports 

confidential. Thus, whether a fax transmission was successful has been designated confidential 

information by Allscripts. The Protective Order specifically provides that “[i]n a putative class 

action, Confidential Information may be disclosed only to the named plaintiff(s) and not to any 

other member of the putative class unless and until a class including the putative member has been 

certified.” (Doc. 70, Page ID 452-53, ¶ 5A). In the Cassell Declaration, mentioned previously 

and submitted by Allscripts with its response, Allscripts admits it did just that: 

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In each telephone conversation, I began the call by introducing myself as an 

attorney for Allscripts. I explained that I was calling regarding a class action 

lawsuit that had been filed against Allscripts alleging that Allscripts sent unsolicited 

faxes to certain individuals and/or businesses in violation of the Telephone 

Consumer Protection Act. I then informed the individual to whom I was speaking 

that his or her practice had been identified as an apparent recipient of one of the 

faxes at issue in the class action, which was the reason I was contacting them 

specifically. 

(Cassell Decl., Doc. 266-13, Page ID 6705, ¶ 6 (emphasis added)).7

 

 In sum, Allscripts contacted a putative class members, prior to a class being certified, 

revealed information designated confidential under the Protective Order by Allscripts, in an effort 

to solicit a declaration (that was admittedly prepared by Allscripts, see Cassell Decl., Doc. 266-

13, Page ID 6706, ¶ 9). Putting to one side Allscripts’ “mendacity” attack, its defense of its 

communications with putative class members – that under Rule 23, “generally,” either side can 

communicate with putative class members, and that the Supreme Court “demands an exacting 

standard to prevent parties from communicating with absent class members,” see Allscripts Resp. 

at 8, ignores that a Protective Order was entered in this case expressly prohibiting that which 

Allscripts admittedly did, which was to violate the terms of the Protective Order to obtain 

declarations to aid its defense. 

 Finally, while Ms. Cassell avers that Allscripts informed the putative class members that 

they were part of a class action of similarly situated persons, see Cassell Decl., Doc. 266-13, Page 

ID 6705-06, ¶¶ 8, 12, it does not appear that Allscripts advised the Declarants that their interests 

                                                            

7 Further demonstrating the fact that the Allscripts Declarations are of no evidentiary value, Ms. Cassell 

states: “After explaining the above, I asked whether (consistent with Allscripts’ policy and practice) they 

would have provided Allscripts with permission to send faxes to their practice.” (Cassell Decl., Doc. 266-

13, Page ID 6705, ¶ 6). First, the foregoing is hardly the stuff of the requisite “prior express invitation or 

permission.” Second, permission to send faxes is not permission send fax advertisements. Third, Allscripts’ 

claim that it did not disclose confidential information, Allscripts Resp. at 15, is simply wrong. Once 

Allscripts disclosed to the Declarants that they were recipients, Allscripts, per its own designation of the 

BFX Reports, disclosed confidential information. 

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could be adverse to Allscripts (in contrast to the A-S Declarations, which did have this language, 

see Doc. 215-20, Page ID 4854-63). Nor does it appear that Allscripts advised the Allscripts 

Declarants that should Allscripts be found liable for violating the TCPA, each fax sent could result 

in an award of $500 per fax, or if Allscripts is found to have engaged in willful behavior, $1,500 

per fax. This failure to disclose is further reason to strike the Allscripts Declarations. See Piekarski 

v. Amedisys Ill., LLC, 4 F. Supp. 3d 952, 956 (N.D. Ill. 2013) (invalidating arbitration agreement 

sent to putative class members via misleading email). 

Conclusion 

Pursuant to Rule 37(c)(1), Plaintiff requests that the Court enter an order (i) striking the 

Allscripts and A-S Medications Declarations, and (ii) striking portions of Allscripts’ Opposition to 

Plaintiff’s Motion for Class Certification that relies upon the Allscripts and A-S Medications

Declarations. 

 

Date: August 5, 2016      Respectfully submitted, 

PHYSICIANS HEALTHSOURCE, INC., 

individually and as the representatives of a 

class of similarly-situated persons 

 

s/ Ryan M. Kelly 

 Ryan M. Kelly 

Brian J. Wanca 

Ryan M. Kelly 

ANDERSON + WANCA 

3701 Algonquin Road, Suite 500 

Rolling Meadows, IL 60008 

Telephone: 847-368-1500 

George D. Jonson 

Matthew Stubbs

MONTGOMERY, RENNIE & JONSON 

36 East Seventh Street, Suite 2100 

Cincinnati, Ohio 45202 

Telephone: 513-241-4722 

Case: 1:12-cv-03233 Document #: 267 Filed: 08/05/16 Page 14 of 15 PageID #:6799
15 

Phillip A. Bock 

BOCK & HATCH, LLC 

134 N. LaSalle Street, Suite 1000 

Chicago, IL 60602 

Telephone: 312-658-1500 

Max G. Margulis 

MARGULIS LAW GROUP 

28 Old Belle Monte Road 

Chesterfield, MO 63017 

Telephone: 636-536-7022 

 

CERTIFICATE OF SERVICE 

I hereby certify that on August 5, 2016, I electronically filed the foregoing document with the 

Clerk of the Court using CM/ECF system. Notice of this filing will be sent by e-mail to all parties 

by operation of the Court’s electronic filing system. 

 s/ Ryan M. Kelly 

 

Case: 1:12-cv-03233 Document #: 267 Filed: 08/05/16 Page 15 of 15 PageID #:6800