Search Results

The discovery issue currently before the Court is whether Plaintiff should be permitted to conduct a forensic examination of Defendant’s cell phone (from the period of January 1, 2019 to December 21, 2019) to recover certain text messages and iMessages or whether such production is beyond the scope of discovery and in violation of Defendants’ privacy rights.

The Court found that Plaintiff’s Request for Production was within the scope of discovery and required the Defendant to produce certain text messages and iMessages in the relevant time period as propounded by Plaintiff with certain safeguards in place.

First, the Court held that the Plaintiff properly propounded written discovery requests seeking certain text messages and iMessages from the time period of January 1, 2019 through December 21, 2019. Second, the Court determined that the text messages and iMessages were relevant and responsive to Plaintiffs’ discovery requests from the period of January 1, 2019 through December 21, 2019 and were proportional to the claims and defenses in this case. Third, the Court determined that the Defendant currently possesses the same phone as she possessed and utilized back in 2019 during the relevant time period. Further, in an effort to end the discovery dispute, the Court found that a forensic examination with the necessary safeguards in place to protect Defendant’s privacy rights was the best way to accomplish the task. Additionally, the Court noted the potential for serious sanctions if e-discovery preservation, search, or production was inadequate. Moreover, the Court found that Plaintiff was not engaging in an “improper fishing expedition” in seeking the text messages and iMessages.

Finally, in order to protect Defendant’s privacy rights as to the personal matters on her phone, the Court ordered that an independent expert be appointed to facilitate the inspection, required the parties to meet and confer regarding their designation of such expert within seven (7) calendar days, and further ordered that no waiver of privilege would occur if the computer expert had direct or indirect access to information protected by attorney-client privilege that could have resulted in inadvertent disclosure. Lastly, the Court ordered that a neutral and agreed-upon third-party expert must create a mirror image of Defendant’s cell phone.

Measured Wealth Private Client Grp. v. Foster_2021-08-05 14 28 15 +0000

Scheduling Order

Plaintiffs’ Request for Production

Plaintiff’s Rely in Motion to Compel Forensic Examination

Notice of Compliance

Motion to Compel

Interim Order

Complaint

Defendant’s Response in Opposition to Plaintiff’s Motion to Compel Forensic Examination

The electronic discovery issue in the case was an appeal of the decision of the bankruptcy court that found that the Debtor committed spoliation of evidence when she intentionally destroyed her laptop and whether the bankruptcy court properly applied a presumption that the Debtor had not taken a required credit counseling under 11 U.S.C. 109(h)(1)

The court affirmed the decision of the bankruptcy court. The court held that the destruction of the laptop had deprived the court of the best evidence to prove compliance with 11 U.S.C. 109(h)(1). The Debtor had been informed on multiple occasions to preserve the laptop, had failed to preserve the laptop, Debtor provided multiple contradicting stories regarding the loss of the laptop in a failed effort to rebut the presumption properly applied by the bankruptcy court. The bankruptcy court’s decision was not erroneous under these facts.

Order

The court considered the defendants’ motion to compel the Properties of the Villages (the “Villages”) to produce documents and the defendants’ motion was then granted in part. The disputed discovery requests at issue are the defendants’ joint request for production number 7, which sought documents, emails, text messages, letters, or notes to or from any of the defendants and POV or its representatives; and request for production number 10, which sought documents involving suggested political votes or contributions from 2008 to present coming from or on behalf of the Villages or any representative of the Villages.

• Issues Under Request for Production 7
  • Is the Villages correct in asserting that searching for “any and all” emails that might be relevant over a period of 15 years will be unduly burdensome, and if so, what changes should be made to the request for production?
  • Is the defendants’ request for all other relevant documents, letters, notes, and text messages over a period of 15 years also unduly burdensome, and if so, what amendment in the request for production would be proportional?
• Issues Under Request for Production 10
  • Are the documents dealing with suggested political votes or contributions from 2008 to present relevant?
  • Must the defendants provide legal support for their theory that the documents are relevant to their affirmative defense?

• Request for Production 7
  • The court found that this request for production would be unduly burdensome. As a result, the defendants amended their request to instead ask for all relevant emails from January 1, 2017 to present, and agreed to the production of emails prior to January 1, 2017, subject to search terms agreed by the parties. Although requesting
  • The court found that this time period would also be unduly burdensome, and POV should only have to produce all relevant correspondence to the defendants from January 1, 2017 to present, and the parties should agree on relevant search terms to produce any electronic documents or text messages that may be relevant.
• Request for Production 10
  • The defendants pleaded the affirmative defense that the Villages is estopped from enforcing the independent contractor agreement because it required the defendants to make illegal and improper political contributions and donations. Therefore, any documents regarding those suggested political votes and contributions would be relevant.
  • Although it may be difficult to imagine how the defendants will prevail on their theory, that is not the standard for discovery. During discovery, “the court is not required to examine the likelihood of success or the merits of any claims or defenses.” Instead, the court must consider if the information is “relevant to the claims and defenses in the action, and then ask whether the proposed discovery is proportional to the needs of the case.”
• Conclusion
  • The court held that POV must comply with the defendants’ joint request for production numbers 7 and 10 as outlined in the resolution.

Defendants’ Motion to Overrule Objections and Compel Production of Documents

Plaintiff:Counter-Defentant’s Response in Opposition to Motion to Overrule and to Compel

Order

The electronic discovery issue is whether the plaintiff should be subjected to sanctions for failing to search its computers and servers for responsive documents where the plaintiff’s sworn testimony states that it had no reason to believe that any non-duplicative responsive documents reside on the computers or servers, and where Defendant has not provided any factual basis for its belief that the additional search of Plaintiff’s server is necessary. In other words, does a party have to search a location for responsive documents when the party has no reason to believe responsive documents would be located?

The court noted that although a plaintiff has an obligation under Federal Rule of Civil Procedure 34 to either provide all documents responsive to Defendant’s request, or to object to providing certain documents Plaintiff intends to withhold, Rule 34 is silent as to how a party must locate these responsive documents, and the measures a party must take in conducting its search. The court also noted that no case law had been brought to the Court’s attention that would require Plaintiff to search a location that it has no reason to believe would hold responsive documents. Next, the court highlighted the “enormous burden and expense of electronic discovery.” Based on these considerations, the Court did not require the plaintiff to conduct additional discovery where Defendant had not provided any factual basis for its belief that the additional search of Plaintiff’s server is necessary, and where the defendant had not rebutted plaintiff’s sworn testimony that there are no relevant, non-duplicative documents stored there. Thus, the court found that sanctions were not appropriate at that time.

Motion for Sanctions

Plaintiff’s Response

Reply to Response to Motion

The defendant was a former employee of the plaintiff who defected to a competitor and contacted customers of the plaintiff. The plaintiffs obtained a preliminary injunction enforcing a covenant not to compete. In addition, the TRO required the defendant to preserve all documents and information in whatever form. The Court made clear to Sewpersaud’s counsel, in Sewpersaud’s presence, that “he needs to understand that it’s critical that [relevant information on his electronic devices] be retained and that he’ll need to make those devices available for some reasonable period of time.” The Court then converted the TRO into a preliminary injunction. The defendants thereafter failed to obey the court’s preliminary injunction causing the the court to consider whether Defendants Sewpersaud and Rotec should be held in civil contempt for violating the Court’s orders.

The primary electronic discovery issue, in this case, was whether Sewpersaud’s actions, in violation of the TRO and PI, including the deletion of over 100,000 text messages and thousands of WhatsApp messages, would support a finding of civil contempt against Sewpersaud.

The court held Sewpersaud in civil contempt violating the preliminary injunction by continuing to violate his non-competition covenant and failing to preserve electronically stored information. Sewpersaud testified under oath that he earlier changed his iPhone retention settings (causing the 100,000 deletions), but computer forensics showed that the settings change was made less than an hour before he was forced to turn over his device for inspection. His explanation of whether the deletion was intentional was inconsistent when comparing his deposition statements and his testimony before the court. For his emails, the plaintiff initially conceded it could not precisely pinpoint when the emails were deleted, but this was because Sewpersaud did not provide password information to his email accounts, despite the preliminary injunction directing him to cooperate in the inspection of his electronics. Once the court specifically ordered Sewpersaud to turn over his password, a full inspection showed that the defendant deleted as well.

Order

Plaintiff’s Motion for Order to Show Cause

Defendant Usine Rotec Inc.’s Response to Order to Show Cause

Order to Show Cause

In this multidistrict litigation, the court considered Defendants’ Motion to Compel Forensic Analysis of Plaintiff’s mobile device. The plaintiff in a multidistrict bellwether case, had retained a litigation support firm to collect relevant data from his social media accounts and mobile phone and produced the information t the Defendants. However, at his deposition, the plaintiff testified that he had communicated with three individuals through Facebook and text messages and that he had produced those messages. In fact, he had not produced such messages. His counsel later asserted that the plaintiff did not know whether the messages were deleted and that his client “indicated he has always tended toward deletion of text and message chains once the discussion is complete.” The Defendants then requested that the court appoint a neutral expert to conduct a full forensic examination of the plaintiff’s iPhone to attempt to recover deleted messages and metadata relating to the deletions

The primary issue is whether the discovery requested by Defendants was proportional to the need of the case.

The court also considered sub-issues stemming from three arguments that the Defendants advanced to show a compelling need for a neutral forensic

• First, will the examination ensure the initial collection of data from the mobile device was complete?
• Second, will the collected data either establish or refute the Plaintiff’s pattern of deleting messages?
• Third, is there a compelling need for the examination to attempt to locate fragments of deleted text and Facebook messages?

Defendants’ Motion to Compel Forensic Analysis of the Plaintiff’s mobile device was denied by the court. The court refused to compel the full forensic examination because the initial ESI collection by the plaintiff’s expert was “reasonable, consistent with industry standards and appropriate…” The court additionally reasoned that Defendants failed to satisfy Rule 26(b)(1)’s proportionality prong because Defendants’ only demonstrated a mere possibility, not a reasonable likelihood that a forensic examination would locate the content of deleted messages or even when the messages were deleted.

In response to Defendants’ first argument, the court found that there was no dispute that Plaintiff’s initial ESI collection complied with Pretrial Order No. 42. The neutral full forensic examination was not required, in particular, because Plaintiff did not attempt to retrieve ESI for production without assistance.

In response to Defendants’ second argument, the court found that Defendants failed to show that a forensic examination of the Plaintiff’s phone would produce data relevant to establish or refute the existence of a pattern of message deletion. The court made this determination based on the fact that even if the the full forensic examination revealed deleted text messages the examination would “not show anything to document when text messages were deleted, why they were deleted, the contents of the deleted text message, or the pattern, if any, of the user in deleting messages.

The briefings in this case are sealed and not available on PACER.

Finally, in considering Defendants’ third argument, the court held that the examination requested by Defendants is not proportional to the needs of the case. Although Defendants may have shown that there was some possibility that a full forensic examination might recover “fragments” of deleted messages, there was not a high likelihood that the content of the messages could be recovered from the fragments. In this court’s view, recovery of the full text was not highly probable, and thus, not sufficient to “justify compelled intrusion on the [Plaintiff’s] privacy.” Therefore, the forensic examination would have been disproportionate to the slight importance of the potential discovery.

The defendants filed a petition for writ of certiorari review of the Circuit Court for Miami Dade County’s order denying the defendant’s renewed motion for reconsideration on the issue of waiver of attorney-client and work product privileges.  The order required the defendants to submit to forensic examination of their computer records by a third party which would locate, collect, and preserve documents responsive to the plaintiff’s request to produce.  The court’s Order Regarding Electronic Discovery did not require the production of the located records. The defendants did not respond in a timely manner to the request and failed to assert the attorney-client and work product privileges even while several orders compelling discovery were entered.  The defendants attributed this failure to his lawyer at the time and, obtaining new counsel, asserted the privileges.

The Court concluded that it was without jurisdiction to grant the writ because the trial court’s requirement that the records be maintained does not require production to the plaintiff unless and until the parties agree or the court enters a further order.  Additionally, the appellate court noted that there remains the possibility that the production of documents may never be ordered and any subsequent order requiring production could become the subject of review at that time.  The court also held that certiorari review of such orders may be premature because no irreparable harm can be demonstrated until the trial court enters a subsequent order actually requiring the production of the privileged documents.  Lastly, the Court held that while a privilege can be implicitly waived, failure to assert a privilege at the earliest opportunity, in response to a discovery motion, does not constitute a waiver of the privilege so long as the privilege is asserted by a pleading before there has been actual disclosure of the information sought to be protected.

The electronic discovery issue, in this case, is whether Regions intentionally withheld documents from production, acted in bad faith in failing to produce documents, or destroyed, tampered with, or concealed documents such that the Court could draw an adverse inference that the allegedly withheld documents would have been unfavorable to Regions in this proceeding.

THESE JOINTLY ADMINISTERED ADVERSARY PROCEEDINGS came before the Court on Plaintiff Trustee Herendeen’s Motion for Adverse Inference or, Alternatively, to Preclude Regions from Offering Evidence in Support of Certain Defenses and Affirmative Defenses (the “Adverse Inference Motion”), the opposition filed by Defendant Regions Bank (“Regions”), and Plaintiff’s reply.

Plaintiff requested that the Court draw an adverse inference that documents allegedly withheld by Regions (the Documents) would have been unfavorable to Regions in these proceedings. Alternatively, Plaintiff requested that the Court prohibit Regions from introducing evidence predicated on the Missing Documents to establish certain of its defenses and affirmative defenses. Plaintiff contended that because of Regions’ obstruction, discovery abuses, and failure to produce the Missing Documents, they are unavailable to her to rebut Regions’ defenses to her claims for the avoidance of fraudulent transfers and for damages for aiding and abetting and unjust enrichment.

Specifically, Plaintiff asserts that the Missing Documents would have shown that:

Order

Opposition

Reply

Should Globant be subject to evidentiary and monetary sanctions, including:

• the entry of an order deeming Globant to have not responded at all to CCG’s interrogatories, waiving Globant’s objections, and preventing Globant from introducing certain evidence pertaining to the interrogatory topics at trial or on dispositive or other motions; and
• requiring Globant to pay CCG’s reasonable costs in connection with the Motion to Compel, the two follow-up status conferences, the instant Motion, and CCG’s other purported efforts to obtain the discovery that CCG places at issue?

The court found it appropriate that CCG’s Motion be granted in part and denied in part.

Specifically, CCG was awarded fees and costs incurred in bringing its Motion to Compel (Doc. 59). Globant’s First Interrogatory Responses were “woefully deficient.” Rule 37(a)(5)(A) states that if a motion to compel is granted or if the requested discovery is provided after the motion was filed, the court must, after giving an opportunity to be heard, require the party whose conduct necessitated the motion to compel, the party or attorney advising that conduct, or both, to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees. Fed. R. Civ. P. 37(a)(5)(A). However, the court must not order payment if: (i) the movant filed the motion without attempting in good faith to confer with the opposition; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii). The court determined that none of these three exceptions applied, and thus, Globant was required to pay fees and costs incurred by CCG in bringing its Motion to Compel.

However, the court found that sanctions were not warranted at the time for any conduct after the motion to compel hearing. Specifically, no sanctions were warranted as to Globant’s First Amended Responses to CCG’s Interrogatories and Globant’s Second Amended Responses to CCG’s Interrogatories. The court found that since the August 31, 2020 hearing, Globant had complied with the Order, operated in good faith, and expended significant effort to cure the discovery deficiencies discussed at the hearing. Rule 37(b)(2)(A) states that evidentiary sanctions may be awarded if a party fails to obey a discovery order. Fed. R. Civ. P. 37(b)(2)(A). Further, Rule 37(b)(2)(B) states that if a party fails to obey a discovery order, the court must order the disobedient party, the attorney advising that party, or both, to pay the movant’s reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(b)(2)(B). CCG contended that Globant’s Amended Responses to Interrogatory Nos. 4, 5, 7, 8, 16, 17, and 18 were improper. However, whether the responses are proper for purposes of a motion for sanctions depends on whether the responses comply with the Court’s Order. The court found that the First Amended Responses complied with the Order because Globant had made good faith efforts to meet its discovery obligations by supplementing the original response.

Order

The trial judge granted the plaintiff’s motion seeking to temporarily prevent the Florida Department of Law Enforcement from destroying the records that would have otherwise been subject to the destruction statute.  The Florida Department of Law Enforcement, argued that its retention of the records subjects it to penalties for the commission of a felony, under § 790.065(4)(a), Fla. Stat. (2020),  and that it may also be required to broadly preserve the records of potential plaintiffs, which would be unduly burdensome.

The court affirmed the trial judge’s decision to temporarily prevent the destruction of the plaintiffs’ firearms applications.  As an initial point, the Court noted that “[p]reservation orders, such as the one at issue, are a common and accepted exercise of judicial power that safeguard the integrity of the judicial process whose central feature is evidence-based fact-finding.” The court held that the Department’s compliance with a court order is no an intentional and malicious act that would establish statutory liability.  Additionally, the court held that the preservation order only relates to the handful of plaintiffs in the current lawsuit, making the Department’s claim of the necessity to preserve the records of all potential plaintiffs inapt.  Lastly, the court held that the temporary preservation order did not harm the legislative purpose of the destruction statute. Judge Susan L. Kelsey filed an extended dissent

This case contained a “farrago” of discovery motions by both the plaintiff and the defendants. The motions were assigned to a Magistrate Judge. Many of these motions were not relevant to E-Discovery issues and thus, only the first of the three Omnibus Orders resolving these motions is pertinent here. Further, only subsection A of the court’s opinion regarding the first Omnibus Order is relevant.

The First Omnibus Order:

A. Defendant’s Motion to Compel

• In discovery, the Defendants sought (1) ten years of Watkins’s medical records and (2) the identities—though not the content—of any email and social media accounts he’s used over the last five years.
  • Issues Regarding the Medical Records
    • 1.) Plaintiff alleged that “the magistrate judge did not interpret [his arguments] in the light most favorable to the plaintiff.”
    • 2.) Watkins contended that the Magistrate Judge failed to “articulate his premise for finding that the plaintiff’s medical history … is relevant.”
    • 3.) Watkins maintained that “the five year narrowed time frame should be from December of 2015 to January 1, 2011 because that time frame would produce any relevant medical history applicable to the 2015 claimed injuries.”
  • Issues Regarding the Online Accounts
    • 1.) Watkins said that “a party cannot show relevancy by merely making a conclusory claim that discovery ‘could’ lead to discoverable evidence regarding Plaintiff’s claimed emotional damages.”
    • 2.) Watkins complained that “the Magistrate has failed to articulate the premise for his findings that Plaintiff’s emails, social media and online account is relevant.”

Watkins’s Objections [ECF No. 132] to the Magistrate Judge’s First Omnibus Order [ECF No. 124] were OVERRULED.

Resolution of Issues Regarding the Medical Records

• 1.) The District Court rejected this argument for three reasons.
  • (a) This isn’t a proper objection. SeeVanDiver v. Martin, 304 F. Supp. 2d 934, 937–38 (E.D. Mich. 2004) (“A general objection, or one that merely restates the arguments previously presented[,] is not sufficient to alert the court to alleged errors on the part of the magistrate judge.
  • (b) Watkins was incorrect in asserting that he was owed some special deference. In discovery disputes, by contrast, the burden is on the objecting party—here, Watkins—to show “with specificity how the objected-to request is unreasonable or unduly burdensome.” Alvar v. No Pressure Roof Cleaning, LLC, 2018 WL 1187777, at *2 (S.D. Fla. Mar. 7, 2018).
  • (c) Finally the District Court found that Watkins’s medical records were plainly relevant, on the one hand, because, if they reveal that he suffered from these same symptoms before his arrest, they could undermine his claims. On the other hand, the records are relevant because, if they show that he developed these symptoms only after his arrest, they would bolster his claims. And, of course, the medical records might eviscerate his claims by indicating that he’s never suffered from these symptoms at all—neither before nor after the incident
• 2.) The District Court found that the Magistrate Judge was right to conclude that the records were relevant and that there’s no rule—nor has Watkins cited any, see generally. First Obj.—that required her to “articulate” her findings in any greater detail than she did.
• 3.) Since Watkins’s arrest occurred in March 2015, the Magistrate Judge’s timeframe (2014 to 2019) was far more likely to produce relevant evidence. Watkins’s proposed timeframe, after all, would show only what his condition was before his arrest. The Magistrate Judge’s window, by contrast, would give the court a sense of Watkins’s medical history both before and after his arrest. And, given Watkins’s claim that he suffered an onset of symptoms after his arrest, the Defendants should be permitted to compare his pre-arrest and post-arrest medical history.

Resolution of Issues Regarding the Online Accounts

• 1.) The Magistrate Judge determined that the email and social-media records were relevant. See First Omnibus Order at 7. Since Watkins doesn’t seem to quibble with her finding, he’s waived any such argument. See, e.g., Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (“[T]he failure to make arguments and cite authorities in support of an issue waives it.”). In any case, the Magistrate Judge was right: the identity of Watkins’s email and social media accounts is relevant. In his SAC, Watkins alleges that, as a result of his arrest, he’s been denied multiple jobs, was prevented from visiting the park, and has suffered emotional distress.  Watkins’s online history—and, in particular, his social media posts—may well bolster or undermine these claims.
• 2.) The identity of his accounts is plainly relevant. And Watkins cites no rule for the proposition that the Magistrate Judge had to “articulate” this very straightforward finding in some greater length.

Opinion

Response to Motion to Compel

Motion to Compel

The plaintiff filed a motion to show cause order to determine why a defendant, a former employee now working for a competitor, should not be held in contempt for alleged failure to comply with an ESI Protocol Order.

In the second motion, the plaintiff moved for sanctions against the three defendants, two former employees and their current employer, asserting that the defendants engaged in a pattern of spoliation, willful disobedience of Court orders, and contumacious abuse of the judicial process that warranting entry of a default judgment against and the imposition of an award of attorneys’ fees and costs.

In response to the plaintiff’s first motion, the Court found that, because civil contempt “is a severe remedy,” and the burden on a litigant requesting such relief is, therefore “a high one, ” the party seeking civil contempt for noncompliance with a court order must demonstrate by clear and convincing evidence that: (1) the allegedly violated order was valid and lawful; (2) the order was clear and unambiguous, and <(3) the alleged violator had the ability to comply with the order.”

The court noted that although "the Court has substantial discretion in deciding whether and how to impose sanctions under Rule 37, the discretion, however, is not unbridled, as the magnitude of the sanctions must always be 'reasonable in light of the circumstances.'

On the first motion, the court held that the plaintiff's Centennial's request to initiate contempt proceedings was without merit "as even a casual observer to these proceedings is aware, this action has been rife with disagreements as to the relevance, preservation, and production of ESI, as well as accusations of intentional obfuscation and/or destruction of evidence . . . [and] [t]he instant dispute again seems to stem from the parties’ inability to see the forest for the trees and to come together in a rational, pragmatic approach to address the merits of their ongoing feud."

The court then found that the pattern of exchanges between the parties, which were solely by email, was not in compliance with "either the letter or the spirit of Local Rule 3.01(g), particularly given the complexity of the issues involved . . . [as] “3.01(g) requires a substantive conversation in a good-faith effort to resolve the motion without court action.”

Thus, for those reasons, the court denied the motion.

As to the plaintiff’s second motion, the court applied Rule 37(e), Fed. R. Crim. Pro., stating that four threshold elements must be present for 37(e) to apply: (1) there was a duty to preserve ; (2) relevant ESI was lost or destroyed; (3) the ESI was lost as a result of the party’s failure to take reasonable steps to preserve it; and (4) the lost ESI cannot be restored or recovered through additional discovery.

Additionally, “[e]ven if these elements are satisfied, a court may only award sanctions under subsection (e)(1) if it finds “prejudice” to another party, or under subsection (e)(2) if it finds that the party acted with the “intent to deprive” the opposing party of the use of the lost information in the litigation.

In response to the plaintiff’s second motion, the court held that the threshold requirements to trigger a finding of spoliation have not been met” because the plaintiff’s allegations are not sufficiently specific, and the time frame Centennial propose[d] is too indefinite.”

Additionally, the court was not persuaded based on the record before it that relevant information was actually lost, destroyed, or unrecoverable, as Rule 37(e) mandates before a finding of spoliation can be made.

Hence, the second motion was denied.

DOC. 697 – MOTION FOR ORDER TO SHOW CAUSE WHY DAVEY SHOULD NOT BE FOUND IN CONTEMPT OF COURT FOR FAILURE TO COMPLY WITH THE COURT’S ESI ORDERS (05.01.20)

DOC. 704 – GWYNN DAVEY’S OPPOSITIONTO CENTENNIAL BANK’S MOTION FOR ORDER TO SHOW CAUSE WHY DAVEY SHOULD NOT BE FOUND IN CONTEMPT OF COURT FOR FAILURETO COMPLY WITH COURT’S ESI (05.15.20)

DOC. 711 – CENTENNIAL’S MOTION FOR SANCTIONS AGAINST SERVISFIRST, DAVEY, AND MURRIN (05.29.20)

DOC. 728 – DEFENDANT SERVISFIRST BANK’S OPPOSITION TO CENTENNIAL’S MOTION FOR SANCTIONS (06.30 .20)

DOC. 751 – Order on Motion for Miscellaneous Relief (02.20.21)

Plaintiff filed a motion for spoliation sanctions against the Defendant for failing to preserve body camera footage. The Plaintiff, a cruise passenger, alleged that another cruise passenger, John Doe, caused the plaintiff to fall and fracture her wrist when dancing with her on the cruise. John Doe was interviewed by a cruise security office after the incident. The plaintiff asserted the security officer’s video would show John Doe’s inebriated conduction. The defendant asserted that no video existed because the officer did not turn on his camera.

As remedies for the Defendant’s alleged failure, the Plaintiff sought the exclusion of other video evidence, or, as an alternative, a jury instruction allowing the jury to find that, if the jury believes that Defendant negligently failed to preserve the body camera footage, the jury could presume that the body camera footage would have shown that the male passenger demonstrated unruly, erratic, intoxicated, and dangerous behavior at the time of his interview.

The Court denied the motion on the grounds that the plaintiff did not meet her initial burden of showing that the body camera footage ever existed. The defendant’s corporate officer testified that there was no video, and the security officer testified that he could not recall turning on his video camera. The officer would have required John Doe’s permission to videotape the interview pursuant to company policy. The plaintiff never proffered any testimony that the plaintiff’s permission was requested.

As to the plaintiff’s first requested remedy, the Court held that, even if the plaintiff had been able to meet her burden of proof with respect to spoliation sanctions under Rule 37(e), the court would not have been inclined to grant the type of relief sought by the Plaintiff because it was not reasonably related to curing the alleged harm caused.

Regarding the plaintiff’s alternative remedy, the Court held that the plaintiff presented no evidence which would support a finding that the defendant acted with the intent to deprive the plaintiff of use in the litigation of the body camera interview footage.

COURT’S ORDER COMPELLING DISCOVERY COURT’S ORDER ON PLAINTIFF’S MOTION FOR SANCTIONS PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PLAINTIFF’S RESPONSE TO DEFENDANT’S NOTICE OF FILING

Magistrate Judge Barksdale found the plaintiff’s original objections improper due to the plaintiff’s failure to state with specificity the grounds for objection.

Magistrate Judge Barksdale found that the plaintiff used the outdated and problematic “not reasonably calculated” standard of Rule 26, which the 2015 amendments to Rule 26 sought to eliminate.

Order on Defendant’s Motion to Compel

Defendant’s Motion to Compel Plaintiff to Respond to Discovery Requests

Plaintiff’s Response to Defendant’s Motion to Compel

The School Board’s motion to compel and motion for sanctions were legally sufficient and not made in bad faith. The court granted the motions due to their merit. The School Board’s motion to compel and motion for sanctions after numerous attempts to obtain the plaintiffs’ outstanding discovery responses and documents. Contrary to the plaintiffs’ assertions, the court found that the School Board was generous in providing Plaintiffs with extensions and repeatedly detailed the outstanding discovery for the plaintiffs’ benefit. Sanctions were awarded against Attorney Ford for his continued failure to properly participate in discovery and comply with court orders. Sanctions were not awarded against the individual defendants because the defendants did not intentionally withhold documents or obstruct discovery.

Motion for Sanctions

Order Granting Motion for Sanctions

Plaintiffs’ Response to Defendant’s Motion for Sanctions

The Court held that Plaintiff was permitted, with limitations, to conduct a forensic examination of Defendant’s mobile phone, based on the following findings:

Order Granting Plaintiff’s Motion to Compel. Forensic Examination

Motion to Compel Forensic Examination

Response to Motion to Compel Forensic Examination

Reply in Support of Motion to Compel Forensic Examination

The Plaintiff filed a motion for reconsideration. On Plaintiff’s original motion for sanctions, the court ordered supplemental production from the Defendant (of documents already located by the Plaintiff in the possession of third parties). The court, however, did not award sanctions based principally on Defendant’s representations that the limited database of complaints maintained by the Defendant was not searchable for the information requested. In the motion for reconsideration, the Plaintiff demonstrated the existence of three searchable databases maintained by the Defendant regarding customer complaints and warranty claims that contained relevant information that were not searched by the Defendant. The Plaintiff asserted that the motion for sanctions should be reconsidered in light of the searchable databases.

Pursuant to Fed. R. Civ. P. 37(c)(1)(A), the court granted the Plaintiff an award of reasonable attorney fees and costs caused by the Defendant’s failure to search the three databases. The court declined to impose harsher sanctions. The court held that the Defendant’s conduct did not constitute willful inaction because the sources of information were not obvious as to create an inference of “willful inaction.” Moreover, the record did not disclose “willful non-compliance.” Lastly, the information that the Plaintiff was seeking was only tangentially related to their fraud claim and does not warrant more severe sanctions. The court awarded the Plaintiff $3,000 in attorney’s fees.

Plaintiff’s Motion for Reconsideration (Doc. 91)

Defendant’s Response to Plaintiff’s Motion for Reconsideration (Doc. 93)

Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Motion for Reconsideration (Doc. 95)

Order (Doc. 109)

In this multidistrict litigation, the court addressed the Plaintiffs’ concerns regarding the Defendants’ withholding of documents on the basis of the work product and attorney-client privileges. The court requested each party to select 100 documents from the privilege logs as samples for review. After extensive negotiations, the court was required to address 84 documents that remained in dispute from the 200 selected by the parties. The parties submitted the issue to the court through letter briefs.

The first issue involved the adequacy of the Defendants’ privilege log. The Plaintiffs’ asserted that the Defendants failed to include information in the privilege logs required by Fed. R. Civ. P. 26(b)95)(A) and Pretrial Order No. 9. Specifically, the Plaintiffs argued that the Defendants’ failure to include the length of the “document” in each privilege entry including dividing the email threads into separate, itemized privilege entries made it difficult to evaluate the Defendants’ privilege claims.

The second issue involved attorney-client privilege. The Plaintiffs asserted that Florida’s “heightened level of scrutiny” standard should be applied and that the privilege should not attach to communications when neither the sender nor the recipient is attorneys and the purpose of the communication is most likely for business.

The third issue involved the work product doctrine. The Plaintiffs asserted that the court should apply a “primary motivating test” for work-product protection that is similar to attorney-client privilege and protection should only be limited to documents “closely related” to the litigation.

The motion was denied in part and granted in part after the court conducted in camera review of the 84 documents.

The court held that the Defendants had complied with Rule 26 and Pretrial Order No. 9. The Plaintiffs failed to cite any authority that would require the Defendants to amend their privilege logs to include the length of each entry. Further, the Defendants are not required to itemize each email, since itemization may reveal privileged information.

The court rejected the application of a heightened level of scrutiny test for attorney-client privilege. The court held that under Fed. R. Evid. 501 the federal common law standard for attorney-client privilege applies in federal court despite the applicability of state substantive law to the Plaintiffs’ claims. Further, the court refused to deny privilege protection when neither the sender nor the recipient is not an attorney. The test to determine whether privilege attaches is whether legal advice is sought in the communication. Lastly, a party does not waive privilege when they disclose a document to a third party that shares a common legal interest.

The court denied the application of a primary motivating test to determine work-product protection. The court held that work-product protection applies to documents prepared or obtained because of the prospect of litigation. The purpose of the work product doctrine is to allow attorneys to work freely without unnecessary intrusion. Work product protection is distinct from and broader than, the attorney-client privilege.

The court address numerous legal issues in its opinion.

• Attorney-client privilege. The court noted that the privilege arises when “counsel was participating in the communication primarily for the purpose of rendering legal advice or assistance.” The court noted that federal common law related to privilege is used when the action concerns federal claims and state privilege law is utilized when the federal court is entertaining claims arising from its diversity jurisdiction. The instant case however involved federal defenses and state law claims. The court resolved the issue by noting that Florida has no significant relationship to the privileged communications and therefore Florida’s “heightened level of scrutiny” did not apply. The court also noted that because the instant dispute involved corporate communications, principles advocated by the Florida Supreme Court would be applicable to the analysis in any event. The court next found that corporate communications need not include attorneys for the communications to be privileged. Finally, the court noted that a common interest claim requires a party to show a common legal interest.
• Work Product Protection. The dispute involved the Plaintiffs requested that the court apply a work product test “of whether the primary consideration in the creation of the document was anticipated litigation,” while the defendants advocated for a broader “because of the prospect of litigation” test. The court adopted the Defendants’ position. Finally, the court rejected the Plaintiffs’ claim that work product should be limited to litigation “closely related” to the action. The court determined that work product protection applies to any litigation.

Applying these principles, the court determined that eleven of the 84 documents were not protected or varying reasons. The common interest doctrine did not apply to some of the documents because no ongoing legal enterprise existed between the parties when they were exchanged to a third party to establish a joint venture. An electronic calendar invitation sent to an attorney for a meeting seeking legal advice is not protected because the invitation is a scheduling matter. Attachments to the invitation are not protected when the purpose of the attachments is not related to legal advice. A draft communication exchanged between employees is not protected by the attorney-client privilege when the communication does not contain advice or revision from counsel. An email thread where counsel is carbon copied does is not protected by the attorney-client privilege when the purpose of the email is business-related. Emails between counsel and employees are not protected when the purpose of the emails is business-related.

Pretrial Order No. 9 Governing Confidentiality and Privilege (Doc. 442)

Order (Doc. 1048)

The Defendant appeals the denial of a motion to suppress evidence of child-pornography discovered through a warrant authorizing the use of network investigative technique (NIT). The Defendant asserted that the NIT-warrant

The court affirmed the denial of the motion to suppress. Citing United States v. Taylor, 935 F.3d 1279 (11th Cir., Aug. 28, 2019), the court noted that the good-faith exception to the exclusionary rule applies to the NIT-warrant. The warrant application and accompanying affidavit disclosed the scope of the search, and exclusion is not needed when law enforcement’s actions were not deliberate enough.

Opinion

The Plaintiff filed a motion to compel documents responsive to its subpoena to the Defendant. The subpoena requested all emails related to the Defendant’s business relations with a non-party. The Defendant had responded by producing two emails. The Plaintiff asserted that the production was incomplete based on emails received by the non-party.

The court granted the motion to compel the production of emails and ordered the Defendant to conduct additional searches.

The Defendant had responded that they had produced all emails responsive to the subpoena and would not participate in further discovery unless the Plaintiff agreed to a clawback or protective agreement and turn over the emails from the non-party.  Additionally, the Defendant produced an affidavit by its information technology expert claiming that the search had been thorough. However, the court held that it had sufficient reason to believe more emails existed.

First, the Defendant failed to execute a confidentiality agreement. Second, the court held that the Defendant’s uncooperativeness had been an attempt to thwart the subpoena by producing only the emails the Plaintiff already had in possession. Third, the emails provided by the non-party demonstrated the existence of additional emails. Fourth, the court held that the search conducted by the Defendant had not been thorough.

Plaintiff’s Motion to Compel (Doc. 1)

Defendant’s Response to Motion to Compel (Doc. 8)

Plaintiff’s Reply to Defendant’s Response to Motion to Compel (Doc. 14)

Order (Doc. 25)

The Plaintiff asserted in a class-action suit that the Defendant had violated the Telephone Consumer Protection Act (TCPA) by sending unsolicited text messages. The Defendant filed a motion to compel the forensic examination of the Plaintiff’s cell phone. The Defendant asserted that the examination was needed to recover metadata from the Plaintiff’s phone after she had deleted the text messages. The Plaintiff responded that forensic examination would not be proportional and not be relevant to any claims or defenses.

The court denied the motion. The court held that the Defendant did specify how the metadata would be relevant to any claims and defenses.  Even with the deletion of the texts, the metadata was not relevant to establish possession and control of the messages as the parties agreed as an undisputed fact that the Defendant had created and sent the messages. Further, the metadata was irrelevant to prove injury-of act under the TCPA as the receipt of an unsolicited text message alone constitutes injury under the TCPA.

Defendant’s Motion to Compel Forensic Examination of Plaintiff’s Cell Phone (Doc. 44)

Plaintiff’s Response in Opposition to Defendant’s Motion to Compel (Doc. 47)

Defendant’s Reply in Support of Its Motion to Compel Forensic Examination (Doc. 53)

Order (Doc. 55)

The Plaintiffs filed a Motion for Reconsideration of the Court granting Defendant’s Omnibus Motion to Compel. The Court had permitted the Defendants to select an additional 16 custodians and 12 additional search terms and to request more if Defendants have a good-faith basis to do. The first issue was whether permitting additional custodians and search terms was unfair and overbroad. The plaintiff asserted that the evidence did not suggest that the Plaintiff’s production was inadequate and that permitting the additional custodians and search terms was not proportional. The second involved a responsive, non-privileged document that Defendant did not produce. The plaintiff asserted the Defendant made a misrepresentation to the court and requested that the Court order the Defendant to produce a privilege log to minimize the Defendant’s ability to withhold responsive documents.

The court granted the motion in part and denied it in part.

For the first issue, the court held that additional custodians and search terms were not unfair and overbroad. The Defendant was still confined to abide by the court’s prior discovery order to not use terms and custodians to circumvent the limits and parameters of the orders. The court however admonished the parties to cease the discovery “slugfest” involving over 50 discovery motions, responses, replies, notices, and declarations and to engage in a cooperative attempt to identify appropriate search terms. Citing John Rosenthal and Moze Cowper, A Practitioner’s Guide to Rule 26(f) Meet and Confer: A Year Aher the Amendments, The Sedona Conference Institute, 2008, at 1 1 and The Federal Judges Guide to Discovery, Edition 3. 0, The Electronic Discovery Institute (2017), at 50, the court urged the parties to engage in a process of thoughtfully designing search terms and then testing the search terms results through sampling.

For the second issue, the court found no basis in the Plaintiff’s assertion. The Plaintiffs provided no evidence that the Defendant had concealed responsive, non-privileged documents, and the Plaintiffs provided no case law as to why the court should order a privilege log simply because one party alleges concealment of documents.

Omnibus Discovery Order (Doc. 290)

Plaintiff’s Motion for Reconsideration or Modification of Omnibus Discovery Order (Doc. 291)

Defendant’s Response in Opposition to Motion for Reconsideration (Doc. 297)

Plaintiff’s Reply in Support of Motion for Reconsideration (Doc. 304)

Defendant’s Sur-Reply to Plaintiff’s Motion for Reconsideration (Doc. 315)

Order (Doc. 329)

The plaintiff complained of the defendant’s discovery responses. The plaintiff’s concerns were resolved by agreement except for a response to an interrogatory and a response to a request for production. The plaintiff bought a motion to compel including a request for direct inspection of the defendant’s media and for attorney fees. The plaintiff argued the production was deficient because the defendant only produced 22 documents in a significant age discrimination case. Plaintiff argued that the defendant’s counsel failed to supervise the defendant’s identification, collection, search, and production of documents.

The court found that defendant’s counsel was required under Fed.R. Civ. P. 26(g) to oversee the defendant’s efforts responding to the plaintiff’s request for production. Citing In re Abilify (Aripiprazole) Prod. Liab. Litig., No. 3:16-MD-2734, 2017 WL 9249652, at *3 (N.D. Fla. Dec. 7, 2017), the court noted that “self-collection by a layperson of information on an electronic device is highly problematic and raises a real risk that data could be destroyed or corrupted.” The court, however, declined to permit direct inspection noting that such orders require careful precautions to avoid the improper release of proprietary, confidential, and personally identifiable ESI. The court deferred action on the request for direct inspection and fees and ordered the defendant’s counsel to meet and confer with the plaintiff’s counsel to resolve the production issues. Defendant’s counsel was admonished to adhere to counsel’s obligations under Fed. R. Civ. P. 26(g) and to so advise the defendant.

Order Granting In Part and Denying In Part Plaintiff’s Motion to Compel

Plaintiff’s Motion to Compel A Privilege Log, Better Discovery Responses, and Fees

Defendant’s Response to Plaintiff’s Motion to Compel Discovery

Plaintiff’s Reply to Defendants Opposition to Better Discovery Responses

The court held a telephonic hearing on three discovery issues pertaining to scheduled Bellwether cases set for trial in the expansive multidistrict litigation. The first issue involved plaintiffs’ request for discovery from four additional custodians at the Defendants’ Aearo Operations Division. The plaintiffs asserted that the requested custodians were involved in manufacturing and quality control activities associated with allegedly defective earplugs that are the subject of the litigation. Second, the plaintiffs sought the production of information from two Aearo Technologies custodians in Mexico where some of the allegedly defect earplugs were manufactured. Finally, the defendant’s sought and expansion of the defendants’ privilege logs especially as pertains to doctor-patient and psychotherapist-patient privileges.

The court closely examined the requests and determined that some of the requested additional custodians had been shown to contain “unique relevant information not already obtained,” and ordered that four of the six custodians’ electronically stored information should be examined. The court, in particular, recognized the cost and expense associated with the additional custodian located in Mexico but determined that the Plaintiffs had made a sufficient showing that the production of the custodian’s files will yield unique and relevant information not otherwise obtained. With respect to the privilege log, the court noted that the individual plaintiff’s mental condition was not at issue, and thus presumably mental condition information was not relevant. However, in an abundance of caution the court required privilege logs to include: “(1) the date; (2) the identifying Bates number(s); (3) the author or creator; (4) whether the document or information was copied or distributed to a third party (if that information is readily available on the face of the document); (5) a brief description of the document or redaction (such as, “progress notes”); and (6) the reason for withholding or redaction.”

Order Regarding Discovery Disputes

In Re #M Combat Arms Order Governing BellWether Plaintiffs’ Obligation to Review and Produce Electronically Stored Information

The Defendant filed a motion to suppress historically stored data from his cellphone. The Defendant argued that the search warrant lacked probable cause that connected the phone number to him. Additionally, the Defendant argued that the search exceeded the scope of the warrant when the officer collected cellphone data from days not stated in the warrant. Judge Howard had referred the motion to Judge Monte Richardson who recommended denying the motion.

The court adopted the Report & Recommendation of Judge Monte Richardson and denied the motion in part and granted in part. The court held that the officers’ had sufficient probable cause after viewing text messages setting up a drug transaction between the Defendant and a deceased customer. Further, the court held that the issue of connecting the Defendant to the number is an issue for trial and not pertinent for the finding of probable cause. Lastly, the court excluded the data for the days not specified in the warrant, holding that the value deterring such misconduct outweighed the value in admitting the evidence.

Defendant’s Motion to Suppress Historically Stored Data (Doc. 25)

Government’s Response to Motion to Suppress Historically Stored Data (Doc. 31)

Report and Recommendation Regarding the Motion to Suppress (Doc. 39)

Order (Doc. 59)

In this defamation action, the Plaintiff sought to compel the production of documents from the Defendants and the appointment of a computer expert. The Plaintiff requested production of documents referring or related to the Plaintiff, his client, his client’s business, a separate lawsuit between his client and a non-party, and a non-party stated in the article. The Plaintiff also sought to compel the production of documents in categories of the Plaintiffs request that where the Defendant asserted there were no responsive documents. The Plaintiff also requested the appointment of a computer expert claiming that the Defendant had concealed responsive documents. The Defendant claimed to have produced all documents they had related to the publication of the article at issue, and they moved to strike the motion to compel.

The court held that the additional documents requested Defendant covering publications not at issue in the litigation were over-broad and of marginal relevance. Regarding other categories of documents, court found that Plaintiff had produced no evidence to rebut the defendants claim that the Defendant had no responsive documents. The court held that the Plaintiff had not proven that the Defendant had concealed documents. Finally the court denied the request fo a third party forensic inspection asserting that the balancing of privacy concerns against utility required the motion to be denied. The court noted it was required to consider whether the responding party has withheld requested information, whether the responding party is unable or unwilling to search for the requested information, and the extent to which the responding party has complied with discovery requests. Wynmoor Community Council, Inc. v. QBE Ins. Corp., 280 F.R.D. 681, 687 (S.D.Fla. 2012)

Plaintiff’s Motion to Compel the Production of Certain Documents and Appoint a Computer Expert (Doc. 87)

Defendant’s Motion to Strike Plaintiff’s Motion to Compel (Doc. 89)

Response in Opposition to Motion to Strike (Doc. 91)

Response in Opposition to Motion to Compel (Doc. 93)

Order (Doc. 100)

The Defendant filed a motion to compel the forensic examination of all electronic devices owned by the Plaintiff. The Defendant filed the motion to  compel after the plaintiff produced some relevant emails and text messages in his answer to the Defendant’s interrogatories. The parties could not reach on an agreement on a protocol to produce electronic documents. The Defendant argues that the Plaintiff’s use on at least occasion on relevant issues to the case justifies forensic examination.

The court granted the motion in part and denied in part. The court held that the motion was overbroad and not proportional to the needs of the case because the defendant requested all the plaintiff’s cell phones, computers, and iPads. Moreover, the allegations of the complaint only involved events occurring from October 27, 2016 to December 28, 2016. The Defendant had not tailored the requests to specify the forms of production and what would be found. The emails and text messages that had already been produced is not an indicator alone that a forensic examination would produce additional relevant material. The Court found the invasion of the plaintiff’s privacy outweighs the usefulness of the proposed investigation. Finally, there was no evidence of intentional spoliation of ESI.

The Court, however, agreed to require the plaintiff to execute an Authorization form providing the defendant access to the plaintiff’s social media accounts. The request was no opposed by the plaintiff.

Finally, the court declined to award attorney’s fees and cost to either party.

Motion to Compel Forensic Examination of Plaintiff’s Electronic Devices (Doc. 20)

Response in Opposition to Motion to Compel Forensic Examination of Plaintiff’s Electronic Devices (Doc. 22)

Order (Doc. 25)

Chi Nguyen filed a motion for sanctions alleging the spoliation of evidence. Nguyen had slipped and fallen at a Costco 2 years prior to filing a slip and fall claim. Nguyen alleged that Costco had failed to preserve and deleted video that would show Nguyen falling at a checkout counter. Costco argued that they had no duty to preserve the video because Nguyen never made a written request to preserve the video. Costco further argued Costco had produced the relevant video in their possession and that there is no video of the disputed areas because the cameras do not cover the area.

The court denied the motion for sanctions. The court held that Costco had no duty to preserve the video because Costco could not reasonably anticipate litigation arising from the plaintiff’s fall at the store. Moreover, the plaintiff has was not given notice of the litigation prior to the filing of the litigation which occurred two years after the alleged slip and fall. Additionally, even if a duty to preserve had arisen, there was no evidence that the video photographed the area where the slip and fall occurred. The unrebutted evidence provided by the defendant was that the video would not have captured any part of the slip and fall. The motion for sanctions was denied because the plaintiff failed to establish that the alleged spoliated ESI should have been preserved or that the video was lost because the defendant failed to take reasonable steps to preserve it.

Plaintiff’s Motion for Sanctions [Doc. 44]

Defendant’s Response to Plaintiff’s Motion for Sanctions [Doc. 45]

Order Denying Plaintiff’s Motion for Sanctions [Doc. 49]

HealthPlan filed a motion for sanctions and an order to show cause why Dixit should be held in contempt for failing to follow a court order to turn over laptops and hard drives for a full forensic investigation. Dixit had earlier turned over PDF files that did not contain metadata. The order required that Dixit turn the hard drives and laptop to his attorney and HealthPlan designate an expert to conduct the forensic examination. Dixit argued that during the hearing for the order that he had agreed to forensic imaging but not an examination.

The court granted the motions in part and denied in part. HealthPlan’s motion for Dixit to comply with the court order was granted. The motion for sanctions and to show cause why Dixit should be held in contempt was granted to the extent that Dixit must pay reasonable expenses incurred during the meet and confers about the issues and filing the motions. The motion for additional sanctions and for a jury instruction was denied. The court held that because the documents provided had been scrubbed of metadata and the laptop at issue was a work computer and not a personal computer, the current situation met factors of an exceptional circumstance to permit forensic examination pusuant to the Middle District of Florida Discovery Handbook.

Plaintiff HealthPlan Services Inc.’s Motion for Sanctions, Fees and Order to Show [Doc. 218]

Defendant’s Response to Plaintiff HealthPlan Services, Inc.’s Motion for Sanctions, Fees and Order to Show Cause [Doc. 229]

Order [Doc. 233]

The FBI obtained a warrant from a magistrate in the Eastern District of Virginia to use a computer code called Network Investigative Technique (NIT) that transmitted user information to the FBI from accounts accessing a child pornographic site. Agents used the information to obtain search warrants from a magistrate in the Northern District of Alabama for Defendant’s residences and electronic hardware. Defendant’s moved to suppress evidence arguing that the magistrate judge lacked the authority to issue an NIT warrant.

The court denied the motion. The court held that the NIT warrant authorizing the searches of the user accounts exceeded the Virginia magistrate’s authority under Fed. R. Crim. P. 41(b) and unlawful under the Fourth Amendment, because the warrant allowed searches of nationwide account accessing the site. However, the court also held that the good-faith exception to the exclusionary rule can apply in circumstances involving void warrants authorizing complex technology searches. The warrant application did state that the property being searched was the FBI facility in Virginia conducting the NIT search, and the officer’s general explanation of the search was not deliberate, reckless, or grossly negligent conduct requiring the evidence to be excluded.

Supplemental Appellant’s Letter Brief

Opinion

The plaintiffs brought an action against Defendant seeking compensation for psychological trauma sustained by their children during a cruise where the cruise encountered a major winter storm with hurricane-force winds. Defendant produced 91 minutes of CCTV footage out of a possible 14,400 minutes of a 72-hour cruise. Plaintiffs sought an amended spoliation motion with sanctions either as a request for a permissible adverse inference presumption or alternatively an Order preventing RCCL’s witnesses from testifying about the contents of CCTV footage and advising the jury that RCCL had the video footage and VDR “at one time, but it is no longer available.”

The court denied the amended spoliation motion. The court held that Defendant did not violate their duty to preserve ESI when only 91 minutes was preserved. First, Defendant only needed to produce footage from when the storm occurred and not the entire cruise. Second, Defendant had no duty to preserve footage from cameras that did not depict the effects of the storm. Third, Defendant was not required to produce duplicative footage. The 91 minutes was sufficient production because the footage showed the ship through the worst of the storm. Further, since the production showed the worst that the ship underwent, the Plaintiffs did not suffer prejudice, and Defendant did not act with an intent to deprive.

Amended Spoliation Motion on CCTV and VDR [Doc. 388]

Defendant’s Response in Opposition to Amended Spoliation Motion on CCTV and VDR [Doc. 392]

Plaintiff’s Reply in Support of Amended Motion for Spoliation [Doc. 392]

Order Denying Plaintiff’s Amended Spoliation Motion on CCTV and VDR [Doc. 434]

Defendant filed a motion to compel the production of emails sent from Plaintiff’s counsel to non-party telephone carriers related to modification and narrowing of subpoenas issued by the Plaintiff to the non-party telephone carriers. Defendant argues that the communications pertain to key issues of commonality for class certification. Plaintiff argues that the communications constitute opinion work product.

The court granted the motion to compel. The court first divided the emails into two categories: emails sent by carriers’ counsel to Plaintiff’s counsel and emails sent by Plaintiff’s counsel to carrier’s counsel. The court determined no work-product privilege exists for emails sent by carriers’ counsel because the carriers are neither parties to the case or have an interest in the case that would create a confidential relationship.  The emails sent by Plaintiff’s counsel to carriers’ counsel are not protected under the work product doctrine. The emails are not opinion work product, since they do not contain counsel’s strategy or legal theory for the case and contain information regarding the modification, scope, and execution of the subpoena. Second, even if the emails contained work product, any claim of protection was waived by Plaintiff’s counsel because the communications were with counsel for numerous telephone companies where there was no reasonable anticipation of confidentiality.

Order Granting Defendants’ Motion to Compel Plaintiff’s Production of Carrier Subpoena Communications

Defendants’ Motion To Compel Plaintiff’s Production of Carrier Subpoena Communications

Plaintiff’s Memorandum in Opposition to Defendants’ Motion to Compel Plaintiff’s Production of Carrier Subpoena Communications

Defendants’ Reply In Support Of Motion To Compel Plaintiff’s Production of Carrier Subpoena Communications

The Defendant filed a motion for Rule 37(e) sanctions and the dismissal of the Plaintiff’s suit after the Plaintiff had destroyed their computers used to conduct business with the Defendant while still conducting settlement negotiations with the Defendant. At an evidentiary hearing, Plaintiff’s principal testified that he possessed documents and emails on his personal computer.

The court denied the motion. The court held that the threshold requirements of Rule 37(e) had not been since the personal computer may contain relevant documents. Additionally, the court declined to discuss whether the Defendant had suffered prejudice or whether the Plaintiff acted intentionally until the computer had been examined.

Defendants’ Motion to Dismiss Under Rule 37(e) Based on Plaintiff’s Intentional Destruction of Evidence (Doc. 36)

Response in Opposition to Defendants’ Motion to Dismiss (Doc. 38)

Defendants’ Reply in Support of Motion to Dismiss Under Rule 37(e) (Doc. 39)

Omnibus Order (Doc. 101)

In a employment discrimination suit, whether Defendant’s third party subpoena requesting, among many things, information regarding job performance, disciplinary action taken against the Plaintiff, and emails and communication between a specific co-worker and Plaintiff is overbroad, and whether Plaintiff’s Motion to Quash Subpoena, or alternatively, a Motion for Protective Order should be granted.

The court denied the Motion to Quash Subpoena and granted the Motion for Protective Order limited to the information related to any disciplinary action and any communication between the Plaintiff and the specified co-worker. Because the case was a straightforward gender discrimination case, information relating to the plaintiff’s job performance and disciplinary action taken against the plaintiff would not be relevant per Rule 26(c)(1) to the defense of mitigation of damages. Further, the emails and other communication from the Third-Party would not be relevant in the case with the information being marginal at best and not proportional per Rule 26(b)(1) when balanced with the expenses and time the Third-Party would undertake.

Defendant’s Response in Opposition to Motion to Quash Subpoena with Supporting Memorandum of Law

Plaintiff’s Motion to Quash Subpoena

Order Granting Motion to Quash in part

Whether the plaintiff’s discrimination case was properly dismissed under Federal Rule of Civil Procedure 41(b) by the district court for failure of the pro se plaintiff to engage in discovery and produce documents pursuant to Federal Rule of Civil Procedure 34.

The district court properly dismissed the case because the plaintiff failed to  (1) prosecute her case, by serving the School District with any written discovery requests, (2) comply with federal and local rules, by timely responding to the School District’s requests to produce the cellphone and notebook, and with the court’s rules, by avoiding ex parte communications, and (3) comply with the court’s scheduling and discovery order.

11th Circuit Opinion- Heath v. Terrell County School District

Heath v. Terrell County School District, Appellee Brief

Heath v. Terrell County School, district court Order of Dismissal

The Appellant, Bush, appealed his conviction of murder. The evidence collected and utilized at trial included Bush’s searches recovered from his computer before and after the commission of the crime.

Bush’s hard drive was forensically examined. The examination revealed that Bush had conducted searches prior to the charged crime for the terms “silencer,” “silencer + plan,” “homemade suppressor,” “how to make a homemade silencer/suppressor,” “build a .22 caliber suppressor,” “suppressors and silencers,” and “build a .22 caliber suppressor.”  This information was submitted into evidence. The Supreme Court affirmed the conviction based upon this and other extensive circumstantial evidence.

Bush v. State of Florida, No.SC18-227

Whether defendant’s motion is too broad when they are requesting the production of every online posting, online profile, message, communication, tweet, video, photograph from all of plaintiff’s social media for a 3 year period that encompassed the time frame for their Fair Labor Standards claim.

The court denied the motion. The court ruled that a request for all of plaintiff’s social media information during the 3 year period was too broad just to show that plaintiff may not have been doing work related activities during overtime hours. The request was on its face overbroad, unduly burdensome, and unreasonable. Plaintiff had even submitted her own calculations that eliminated 69 weeks from her claim.

Defendant Orange Lake Country Club Realty, Inc.’s Motion to Compel Production of Documents (Doc. 36)

Mediation Report (Doc. 37)

Plaintiff, Debra Artt’s, Memorandum in Opposition to Defendant’s Motion to Compel Production of Documents (Doc. 38)

Order (Doc. 39)

Whether the privacy interests of inmates and security concerns of security procedure being disclosed should allow the issuance of a protective order over a Rule 34 request to enter a jail and inspect photograph and video footage of alleged incident.

The court denied the motion and part and affirmed in part. The court denied issuing the protective order. The court held that visitors to the jail is not a substantial intrusion to the daily, private lives of inmates, who already have a reduced expectation of privacy within prison, and the plaintiff had even offered to conceal the faces of the inmates for any privacy concerns. Lastly, the court held that while the prison has a legitimate interests in preserving the secrecy of their security protocols and locations of security cameras, a confidentiality order on the evidence collected by plaintiff’s discovery request suffices to keep the security interests secret.

Defendant Sheriff’s Motion for Protective Order with Respect to Plaintiff’s Rule 34 Request to Enter Jail and Inspect, Photograph and Video-Record (Doc. 81)

Plaintiff’s Response and Memorandum of Law in Opposition to Defendant, Sheriff’s Motion for Protective Order (Doc. 86)

Order (Doc. 101)

Whether the plaintiff is entitled to search Defendant’s database containing over 90,000 images for copies of copyrighted images not related to the claims in the complaint when one copyrighted image not related to the claim is found on the database, and whether the Defendant should be required to pay the costs of the search and production of copies for all the images on the database.

The courted granted the motion in part and denied in part. The court held that the plaintiff was not allowed to search the entire database for images not related to the claim. Since the claim did not include those images, the existence of one of thousands of plaintiff’s additional images does not constitute good cause to order a search for them. The Defendant will bear the costs of the forensic examination of their database by the plaintiff. The costs of producing copies of each image on the database and providing a searchable format for the plaintiff are not an undue burden considering the amount in controversy and the scope of images on the databases.

Motion to Compel (Doc. 23)

Declaration of W. Trent Moore (Doc. 24)

Response to Motion to Compel (Doc. 29)

Order on Motion to Compel (Doc. 37)

Plaintiff filed a motion to compel Defendant to produce documents related to communication between her and the company and internal communication from directors, vice president’s and compliance directors for a claim under the Telephone Communication Protection Act (TCPA).

The court granted in part and denied in part. The court held that Defendant must produce its communication with Plaintiff due to Defendant’s production of documents after the motion to compel was filed and their failure to state whether any responsive documents are being withheld based on their objections. The court held that the Plaintiff failed to show how the internal communication between its directors, and vice presidents, and compliance directors would aid her claim against Defendant when Defendant produced all its communication and material related with complying with the TCPA.

Plaintiff’ Second Motion to Compel and Incorporated Memorandum of Law (Doc. 41)

Defendant Kohl’s Department Stores, Inc.’s Opposition to Plaintiff’s Motion to Compel (Doc. 51)

Order (Doc. 52)

Defendant objected to the report and recommendation issued by the case’s Special Master after Plaintiff’s Motion to compel Defendant to search its files using Plaintiff’s list of search terms; Defendant specifically objected to using the term “L3”.

The court sustained in part and overruled in part Defendant’s objection to the report. The court ordered Defendant to use the search term “L3” with certain other terms to prevent the search to be too broad. The court held that Plaintiff’s terms  related to other products not involved in the case but may be infringing fell outside the scope of discoverable information of Rule 26.

Report and Recommendation (Doc. 130)

Sparton’s Objections to Discovery Determinations in Special Master’s Recommendation and Report (Doc. 134)

Plaintiff’s Response to Defendant’s Objections to Discovery Determinations in the Special Master’s Recommendation and Report (Doc. 141)

Order (Doc. 157)

Whether Defendant can compel the production of documents and demand sanctions when plaintiff produced documents in non-usable format without metadata and searchable terms and refused to produce documents in usable format claiming undue cost and burden.

The court granted in part and denied in part. First, the cost and burden of the plaintiff is outweighed by the benefit to the Defendant to review the documents for their defense. Second, the amount being claimed and the available financial resources of the plaintiff easily are more than the amount required to produce documents in usable format. Third, failing to provide documents would disadvantage and limit the Defendant’s potential defenses. Lastly, sanctions against the Plaintiff is too early and only a warning of possible sanctions for further violations is sufficient at the present stages of the case.

Motion to Compel Production of Documents (Doc. 38)

Defendant’s Brief in Support of Their Motion to Compel Production of Documents (Doc. 38-1)

Plaintiff’s Brief and Opposition to Defendant’s Motion to Compel Production of Documents (Doc. 40)

Order (Doc. 43)

Defendant filed a motion for spoliation sanctions against Plaintiff after she had deleted emails and other communications months after producing the relevant documents per the court’s scheduling order.

The court denied the motion. The deletion of emails and other communication did not prejudice Defendant, since the plaintiff had produced the relevant documents months before per the court’s order. Further, Defendant did not delete the communication in bad faith. At best, the plaintiff was negligent in her deletion when she thought that the information was no longer pertinent.

Defendant’s Motion for Sanctions Against Sharon Parker for Spoliation of Critical Evidence (Doc. 71)

Plaintiff Sharon Parker’s Opposition to Defendant’s Motion for Sanctions and Incorporated Memorandum of Law (Doc. 77)

Defendant TaxPrep1, Inc.’s Reply in Support of Its Motion for Sanctions (Doc. 84)

Order Denying Motion for Sanctions (Doc. 95)

Defendant filed a motion to suppress evidence of wire fraud and child pornography due to misrepresentations in the original search order for a phone number and eBay account when it referred to the Defendant as the owner of a company and phone number, thereby invalidating later orders for searching Defendant’s electronic devices. Further, Defendant argues that the computer files should also be suppressed when the search orders did not explicitly state which files were to be seized and only referred to electronic devices and information generally.

The court denied the motion to suppress. The court ruled that the misrepresentations were not made in bad faith based on the officers originally not knowing the identity of the owner and later being told by Verizon that the Defendant operated the number with him being listed as the owner of the company. Further, the general description of the search warrants were constitutional due to he complex nature of wire fraud and electronic communication.

Motion to Suppress and Request for Franks Hearing (Doc. 14)

United States’ Response in Opposition to Defendant’s Motion to Suppress Evidence (Doc. 32)

Report and Recommendation (Doc. 62)

Defendant was ordered to produce documents to plaintiff. At a later date, plaintiff and Defendant conducted a telephone conference for production of additional documents. The agreed upon terms were not written down. When plaintiff reviewed data from Defendant’s laptop, they discovered files deleted that fell outside the dates of the motion to compel but within the terms that the plaintiff believed the Defendant had agreed to, and plaintiff filed motions for spoliation and sanctions.

The court denied the motion. The Defendant was not required to follow the terms of the oral agreement from the telephone conference. Per Local Rule 4.15, “No stipulation or agreement between any parties or their attorneys, the existence of which is not conceded, in relation to any aspect of any pending case, will be considered by the Court unless the same is made before the Court and noted in the record or is reduced to writing and subscribed by the party or attorney against whom it is asserted.” Since the statement was not recorded in a written statement, and neither party concedes to the terms, the terms are not valid. The deletion of the files were not spoliation since the original motion did not cover the dates the of the deleted files.

Plaintiff’s Motion for Sanctions Against Defendant, Global Resort Management, LLC and for an Order to Show Cause Why Global Should Not be Held in Civil Contempt (Doc. 64)

Order to Show Cause (Doc. 75)

Global Resort Management, LLC’s Response to Court’s November 19, 2010 Order to Show Cause (Doc. 79)

Plaintiff’s Reply to Defendant Global Resort Management, LLC’s Respone to Order to Show Cause (Doc. 82)

Order Denying Plaintiff’s Motion for Sanctions (Doc. 91)

Whether e-discovery costs for copying and preserving data in a more convenient format and for the management of the data by a hired company are allowable.

No, the court did not allow the costs to be collected. The court determined that there are 3 allowable categories for e-discovery costs: (1) the cost of “imaging” hard drives containing ESI and processing that single-file “image” to extract individual documents with their original properties and metadata intact; (2) the cost of organizing the extracted documents into a database and then indexing, decrypting, de-duplicating, filtering, analyzing, searching and reviewing those documents to determine which are responsive; and (3) the cost of copying responsive documents onto DVDs or the like for delivery to the requesting party. Converting and preserving data must be limited to data ingestion or extraction as a substitute to physical copies. The convenience costs are not allowed as they are outside the limitation. Further, costs accrued for management by the hired company do not fall within the three categories.

Defendant’s Motion for Award of Costs and Fees (Doc. 713)

Plaintiff’s Opposition to Defendant’s Motion For Award of Costs and Fees (Doc. 732)

Defendant’s Reply in Support of Her Motion for Award of Costs and Fees (Doc. 750)

Plaintiff’s Sur-Reply in Further Opposition to Defendant’s Motion for Award of Costs and Fees (Doc. 752)

Opinion and Order (Doc. 761)

Whether the spoliation sanctions are appropriate when potentially very damaging video diaries and hard drives were lost by plaintiff and when he had made multiple misrepresentations to opposing counsel and to the court to their existence and their loss.

The court ordered sanctions and dismissed the case with prejudice against the plaintiff. He had failed his duty to preserve by not backing up the files, and despite knowing the identity of those who had stolen the files, he took no actions in recovering the files from them. Further, he had acted in bad faith making contradictory statements to his ownership of the files, the date and other details of the burglary, and when he filed the burglary to the police. His actions unduly prejudiced defense counsel and were in bad faith despite repeated warnings by the court regarding his conduct.

Motion for Sanctions (Doc. 232)

Response to Motions for Sanctions (Doc. 247)

Reply to Response to Motion for Sanctions (Doc. 249)

Report and Recommendation to Motion for Sanctions (Doc. 274)

Whether spoliation sanctions are appropriate when an agent of the Defendant, an independent contractor, on his own accord and without knowledge by the Defendant, deleted files from a computer ordered to be inspected prior to delivery.

The court granted in part and denied in part. As per an earlier order, the agent would not be allowed to testify and evidence originated by him would be excluded. Further, Defendant will not be allowed to rely on any files sent from and to the agent that the Defendant has produced.  However, the agent was only under partial control by the Defendant, and Plaintiff’s contention that the appropriate remedy of striking the Defendant’s Answer and Counterclaims would be too extreme.

Motion for Sanction for Malibu’s Destruction of Evidence in Violation of Court’s Order (Doc. 273)

Memorandum in Opposition of Malibu Boats to PCMW’s Motion for Sanctions (Doc. 294)

Reply to Response to Motion For Sanctions (Doc. 303)

Order on Motion for Sanctions (Doc. 309)

Appellant appealed the trial court’s granting of a motion for summary judgement. The issue was whether genuine issues of material fact existed on emails and drives that were involved in a motion to compel.

The court reversed the trial court’s decision and remanded the case. It held that the summary judgement was premature when relevant discovery had yet to be completed, and the emails and hard drive information could contain general issues of material fact.

Appellant’s Reply Brief

Appellee’s Answer Brief

Initial Brief on Merits

Whether a search warrant to search defendant’s home and seize electronic devices included the searching of the electronic devices for child pornography.

The court denied the defendant’s motion to suppress. The search warrant had an attachment that listed a number of electronic devices generally found within a home that provided enough specificity to include search and seizure of the defendant’s computer.

Plaintiff’ Motion to Supress Evidence (Doc. 35)

Reponse to Motion to Supress Evidence (Doc. 42)

Order on Motion to Supress (Doc. 51)

Defendant appealed his conviction for possession of child pornography, alleging that his Fourth Amendment rights were violated when the Florida Department of Law Enforcement obtained the photos without a warrant when the chatroom hosting service matched the hash values of the photos to known values of child pornography, and the lower court had committed reversable error when denying his motion to suppress.

The Court affirmed the trial court’s denial. The evidence was uncovered by a private actor who had done private searches in the past by comparing the hash value of uploaded files to known hash values of child pornography. Since the Fourth Amendment does not apply to private actors, the motion was denied. The Court also noted that the Defendant had no reasonable expectation of privacy in the chatroom since he provided no evidence that he had taken any affirmative steps to secure access to the files or control of the chatroom.

Plaintiff’ Motion to Supress Evidence (Doc. 35)

Reponse to Motion to Supress Evidence (Doc. 42)

Order on Motion to Supress (Doc. 51)

The court addressed whether a proposed settlement of an FLSA claim was fair and reasonable pursuant to 29 U.S.C. sec. 216(b). The settlement provided for a compromise of plaintiff’s original claim of $33,300 down to $20,130.  The Joint Motion for Approval of Settlement requested an award of attorneys fees to plaintiff’s counsel that were negotated separately from the liability settlement amount.

The court found the settlement fair and reasonable based in part on the anticipated costs of electronic discovery.  The parties stipulated that, “This case would have been expensive to litigate through trial, particularly given the disputed issues and amount of electronic discovery, all of which would have been unlikely to definitively resolve this case in favor of either party.” The parties further noted that had the case gone to trial, both sides would have likely been required to obtain IT experts. The parties further noted that the amount of attorneys fees was negotiated separately from liability. The magistrate judge recommended that the district court approve the compromise settlement.

Joint Motion for Approval of Settlement

Report and Recommendation

Opinion and Order

The court addressed whether a forensic search utilizing 110 key words including many common words– such as “condo*”– amounted to cart blanche discovery into the responding party’s electronically stored information that constituted sufficient grounds to grant certiorari.

The Shir Law Group, attorneys practicing condominium and community association law, initially failed to produce certain relevant emails. The court determined that greater technical competence was required and granted the requesting party’s motion for a forensic examination of Shir Law Groups’ electronically stored information. The court requested a proposed forensic protocol from the parties. The Shir Law Group proposed 30 terms; the requesting party proposed 110 terms that included common words such as “condo*”. The trial court accepted the requesting party’s proposed protocol. The appellate court found that certiorari was required even though overbreadth is not normally sufficient in and of itself because the instant case involved a carte blanche fishing expedition into the responding party’s ESI. The appellate court reversed the trial court’s order stating that the forensic examination parameters and search protocol should be appropriately crafted to protect against the disclosure of privileged or irrelevant information, without restricting the forensic examiner’s ability to retrieve relevant, non-privileged information.

SLG – Petition For Writ of Certiorari

Carnevale – Response to Petition

Defendant challenges the admissibility of social media posts, direct messages, and text messages at his trial claiming that the ESI evidence was not authenticated and hearsay and violated the Confrontation Clause of the Sixth Amendment as testimonial statements.

The court affirmed the admissibility of the evidence. The defendant stipulated to the admissibility during the trial and cannot now challenge it during appeal. The messages and posts were authenticated by a records custodian. Even if Garcia had challenged the posts and messages, the posts and messages would have been admitted as a party admission under Rule 403. Messages that Garcia received could serve the non-hearsay purpose of providing context for the conversation. Lastly, the posts and messages were not testimonial statements since they were not made with expectation that the post or message would be used in a prosecution.

Opinion

The plaintiff was injured in on a cruise ship. She brought a motion for sanctions alleging the spoliation by Carnival Cruise of closed-circuit television video of her fall. The issues presented to the court was whether the court should issue an order or a report and recommendation, whether the CCTV footage is ESI covered by Rule 37 and whether Carnival failed to take reasonable steps to preserve it, and whether the lost footage cannot be restored or replaced through additional discovery, and whether prejudice requires the loss of “crucial” evidence. The court also addressed whether the issue of intent to deprive should be determined by the court or a jury.

The court recited a complicated factual background regarding the “lost” CCTV footage. The footage was originally viewed by Carnival’s security team which reported the video did not show the actual slip and fall. When the video was requested in discovery, Carnival could not locate the video and surmised it was lost as the video was transferred from one storage location to another. A critical witness deposition was not taken because the witness had been transferred to India. The parties contested the reasons for the transfer.

The court, as a preliminary matter, determined that the court could issue an order if sanctions were denied, rather than a report and recommendation. Next, the court determined that Rule 37(e), not the court’s inherent authority, governed the issue of spoliation sanctions for the loss of ESI.

The court next discussed whether CCTV footage is ESI. The court found that CCTV footage is ESI because the question was whether Carnival should have stopped the automatic overwriting process of the CCTV footage. Thus, the court’s inherent authority is not triggered.

The court next addressed whether Carnival took reasonable steps to preserve the CCTV video. The court determined that the plaintiff had the burden to establish that Carnival did not take reasonable steps to produce the CCTV. The court determined that Carnival had failed to provide any evidence beyond suggesting various hypotheticals and speculations as to what had happened to the video. The court concluded that Carnival did not take reasonable steps to preserve the CCTV footage.

The court then addressed whether the lost footage could be restored or replaced through additional discovery. The issue is not whether the footage is “crucial” to the plaintiff’s case. The court noted there is no other video and deposition answers from eyewitnesses are not an adequate substitute. Nor does Rule 37 require great prejudice, only prejudice.

The court then crafted a creative remedies solution. The plaintiff could have all the evidence about the CCTV video presented to the jury and argue that Carnival had an intent to deprive Plaintiff of the use of the video. If the jury so determined, then a presumption would be appropriate.

Alternatively, the plaintiff would be permitted to prevent Carnival witnesses from testifying about the contents of the lost video and have the court advised the jury that the video was once available but no longer.

Plaintiff’s Motion for Sanctions Due to Spolialtion of Evidence

Defendant’s Response in Oppositon to Plaintiff’s Motion for Spoliation Sanctions

Order on Plaintiff’s Spoliation Sanctins Motion

The court addressed the defendant’s motion to reconsider the court’s previous 50-page order on plaintiff’s motion. See Sosa v. Carnival Corp., No. 18-20957-CIV, 2018 U.S. Dist. LEXIS 204933 (S.D. Fla. Dec. 4, 2018). The court clarified that the previous order did not order any sanctions and that the court found that the defendant had acted to deprive the plaintiff of the use of ESI. The defendant also challenged the prior order challenging the court’s determination that the jury should determine whether the defendant has acted to deprive the plaintiff of the use of the lost ESI (television video of a slip and fall event.) Finally, the defendant challenged the court’s determination that the defendant did not take reasonable steps to preserve the lost video footage.

The court noted that the court made no finding that defendant acted with an intent to deprive the opposition of the use of ESI. The court it specifically left that issue for the jury depending on the plaintiff’ selection. The court next rejected defendant’s claim that referring the intent issue to the jury was erroneous of contrary to law. The court next recited record evidence that the court determined demonstrated the defendant’s failure to take reasonable steps to preserve the lost ESI noting that defendant’s negligence must be weighed on a sliding scale based on a party’s relative resources and litigation experience. The court noted that Carnival operates 29 cruise ships from 23 ports and had been named in hundreds of lawsuits in the district. Carnival’s litigation representative responsible for ESI compliance testifies for Carnival at trials and deposition once a week.

Plaintiff’s Motion for Sanctions Due to Spoliation of Evidence (Doc. 38)

Defendant’s Response to Plaintiff’s Motion for Spoliation Sanctions (Doc. 47)

Plaintiff’s Reply to Response to Motion for Spoliation Sanctions (Doc. 49)

Order (Doc. 82)

Whether the police officer convicted of falsifying police records had a reasonable expectation of privacy to the data on her flash drive when she had plugged the drive into her work computer located in a public area of the police station.

The court denied her motion to suppress the evidence. She had shared her work computer with a fellow officer and left the password to her account in plain view on her desk for him to use. The computer was connected to department’s network to allow anyone with credentials to use and contained a login banner that all files on the system may be monitored and recorded. “This computer system is the property of the Miami-Dade Police Department. It is for authorized use only. Users have no explicit or implicit expectation of privacy. Any or all uses of this system and all files on this system may be intercepted, monitored, recorded, copied, audited, inspected, and disclosed to authorized personnel. By using this system, the user consents to such interception, monitoring, recording, copying, auditing, inspection and disclosure. Unauthorized or improper use of this system may result in administrative disciplinary action or civil/criminal penalties. By continuing to use this system, you indicate your awareness of and consent to these terms and conditions.” Anything plug into the network was considered within the scope of the protocol.

Because the flash drive was plugged into the computer when seized and not in the plaintiff’s possession, there was no reasonable expectation of privacy to the drive and its materials. A legitimate expectation of privacy consists of both a subjective expectation and an objectively reasonable expectation, as determined by societal standards. The reasonableness of an expectation of privacy in a particular place or item depends on context.

Appellant’s Reply Brief

Appellee’s Answer Brief

Initial Brief on Merits

Whether the defendant had a reasonable expectation of privacy to the data in the disc when it was not in his possession and when he denied knowledge of the contents of the disc and the child pornography on the disc was his.

The court denied the petition for writ of habeas corpus and affirmed the conviction. The defendant had abandoned his interest in the disc when he was confronted by his then wife and denied that the disc and the images on it was his and never requested to have it during the time that she confronted him and turned the disc in to the police. Therefore, he lacked standing to challenge the police searching the disc, and the third party had the authority to have the police search the disc.

Petition for Writ of Habeus Corpus (Doc. 1)

Memorandum in Support of Petition for Writ of Habeus Corpus (Doc. 2)

Response to Petition for Writ of Habeus Corpus (Doc. 9)

Reply to Response to Petition for Writ of Habeus Corpus (Doc. 15)

Answer to Reply to Response to Petitiont of Habeus Corpus (Doc. 20)

Order on Petition for Writ of Habeus Corpus (Doc. 21)

Whether sanctions were appropriate under Rule 37 for the destruction of video footage requested by plaintiff in an age discrimination case where plaintiff claimed the video would show that a meeting with the plaintiff claimed by the defendant did not occur.

The court determined that Rule 37, not the court’s inherent powers, was the sole basis for the remedy sought by the plaintiff. The first prong of Rule 37 requires that the plaintiff establish prejudice. The court determined that plaintiff had not established prejudice: “[s]tated as simply as possible, the video does not provide or disprove any genuine issue material to her underlying claims of discrimination, and so we cannot find she suffered prejudice for [the defendant’s] failure to preserve this particular ESI.”

Further, plaintiff failed to prove that the defendant’s intent was to deprive the plaintiff of the use of the lost footage in the litigation as required by Rule 37(e)(2).

Response in Opposition to Motion for Sanctions for Spoliation of Evidence (Doc. 116)

Plaintiff’s Reply to Response to Motion for Sanctions for Spolaition of Evidence (Doc. 125)

Order on Plaintiff’s Motion for Sanctions for Spoliation of Evidence (Doc. 131)

Whether the defendant should be required to produce requested documents and whether sanctions are appropriate for improper destruction of any requested relevant documents.

The court noted that once a party reasonably anticipates litigation, the party has an obligation to make a conscientious effort to preserve relevant electronically stored information.  “[T]he duty to preserve evidence thus arises when a party reasonably anticipates litigation and thereafter requires that party to suspend its routine document retention or destruction policies and institute a litigation hold to ensure the party properly preserves relevant documents.”  The court could not determine if the requested documents were relevant to the case and, if relevant, whether the requested information was available through other avenues of discovery. Accordingly, the court denied the motion without prejudice and requested certain defendant  witness interviews to determine if the requested information was relevant.

Plaintiff’s Motion to Compel or Alternatively for Spoliation Sanctions

Defendant’s Response to Plaintiff’s Motion to Compel and for Sanctions

Order Denying Without Prejudice Plaintiff’s Motion to Compel and for Sanctions

Whether a witness in possession of relevant documents has a duty to preserve documents when issued a subpoena for deposition which does not include a request for documents.

The plaintiff brought a third party action against the defendant for spoliation of documents. The witness was served with a number of amended subpoenas for deposition. However, not until the 6th amended notice, some 10 months after the first notice, did the plaintiff issue a subpoena duces tecum component. Some months prior to receipt of the subpoena duces tecum the defendant obtained a new computer and did not save any records, documents, or emails from the old computer. The appellate court affirmed the trial court’s order of summary judgment in favor of the defendant. The appellate court noted that there was no statute, contract, or discovery request requiring the defendant, a third party witness in the underlying case, to preserve information relevant to the case. The appellate court declined to rule that a third party has a duty to preserve documents in the control of the third party that are potentially relevant to some pending litigation. “Such a broad pronouncement would be tantamount to declaring a general legal duty on any non-party witness to anticipate the needs of others’ lawsuits. There are innumerable circumstances in which a non-party to litigation may have evidence relevant to a case and may know of its relevance. But that knowledge, by itself, should not give rise to a duty to safeguard the evidence in anticipation of litigation.”

Appellant’s Initial Brief

Appellee’s Answer Brief

Appellant’s Reply Brief

Opinion

The Defendant moved the court to establish an ESI protocol compelling the Plaintiffs to engage third party vendors and set a date by which the parties would be required to reach agreement on document custodians and search terms. Defendant claimed Plaintiffs and Defendant had not been able to resolve various issues fore over a month. Both parties were admittedly “highly sophisticated technology companies.”

The court denied Defendant’s Motion to Compel Appropriate E-Discovery Protocol without prejudice. The Defendant had not sufficiently established that the parties had exhausted good faith negotiations to resolve the e-discovery issues the case presented. The court reminded the parties that discovery was designed to be self-regulating and conducted with a minimum of judicial involvement. The court further recommended various Sedona Conference publications to the parties.

Defendant’s Motion to Compel Appropriate E-Discovery Protocol

Plaintiffs’ Opposition to Defendant’s Motion to Compel Discovery Protocol

Order on Defendant’s Motion to Compel Appropriate E-Discovery Protocol

In this class action case under Telephone Consumer Protection Act, 47 U.S.C. sec. 22 et seq., the Defendants objected to Plaintiff’s discovery requests related telephone call databases asserting that the identification, search, and collection of the requested information about the telephone number called, the length of call, and the call results would be cost prohibitive and require querying numerous databases. The Defendants also asserted the cost of manual redaction and extraction of personally identifying information required under banking regulations would render Plaintiff’s discovery requests cost excessive. Defendants estimated the cost to review and redact the information Plaintiff sought would be between $1,533,169 and $1,864,665. The Plaintiff introduced expert affidavits asserting that the collection and extraction of the information using appropriate scripts and search methodologies would be “easy.”

The court accepted the plaintiff’s expert’s representations and ordered the parties to meet and confer on appropriate collection and data anonymization protocols.

Plaintiff’s Motion to Compel Discovery Responses from Defendants

Transript of Hearing on Motion to Compel/Motion for Protective Order

Defendants’ Reponse to Motion to Compel

Order on Plaintiff’s Motion to Compel

The plaintiffs moved for spoliation sanctions under Rule 37(e) for the defendant’s to preserve email from three custodians between 2002-2006, approximately 10 years prior to the institution of litigation. The emails had been deleted because of defendant’s 60-day retention policy. The court rejected plaintiff’s argument that defendant should have reasonably anticipated litigation because of scientific literature related drug class of drug and other litigation regarding drugs in the same class (that allegedly limited control of gambling behavior). The court determined that industry wide events pertaining to other drugs and other plaintiffs and scientific dialogue and literature were not sufficient to trigger the defendant’s preservation duties. The court also rejected plaintiffs’ claims that a duty to preserve was required by FDA document retention regulations pertaining to adverse drug impacts. Finally, the court rejected plaintiffs’ claims that retention obligations owed to third parties under contractual agreements provided a vehicle for sanctions under Rule 37.

PLAINTIFFS’ SPOLIATION AND RULE 37 MOTION FOR SANCTIONS AGAINST DEFENDANT OTSUKA AMERICA PHARMACEUTICAL, INC.

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR SPOLIATION AND RULE 37 MOTION FOR SANCTIONS AGAINST DEFENDANT OTSUKA AMERICA PHARMACEUTICAL, INC.

Affidavit of Eric M. Lindenfeld, Esq. in Support of Plaintiffs’ Spoliation and Rule 37 Motion for Sanctions

DEFENDANT OTSUKA AMERICA PHARMACEUTICAL, INC.’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’SPOLIATION AND RULE 37 MOTION FOR SANCTIONS

PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF ITS SPOLIATION AND RULE 37 MOTION FOR SANCTIONS AGAINSTOTSUKA AMERICA PHARMACEUTICAL, INC

Order Denying Plaintiffs’ Spoliation and Rule 37 Motion for Sanctions Against Defendant Otsuka America Pharmaceutical, Inc,

Whether evidence of destruction of relevant documents immediately proceeding and after commencement of litigation without more is sufficient to establish spoliation of evidence and imposition of sanctions?

No, the court found that sanctions for spoliation were not appropriate.

To establish spoliation has occurred the moving party must prove (1) the alleged evidence had existed at one time, (2) the spoliator had a duty to preserve the evidence, and (3) the evidence as crucial to the moving parties prima facia case or defense. Further, imposition of sanctions for spoliation is only appropriate where there is evidence of bad faith.

Here, the moving party was able to loosely establish the three elements necessary for spoliation. However, the court found that there was no evidence of bad faith by the non-moving party. Instead the court noted multiple instances of how the non-moving parties behavior was reasonable outside the scope of litigation. The court went on to conclude that while the non-moving party was potentially negligent there was no evidence to suggest the non-moving party had acted in bad faith.

Motion for Summary Judgement (Doc. 104) 

Defendant’s Motion for Summary Judgement (Doc. 109)

Motion for Entry of Judgment as a Matter of Law on Third Party Counter Claim (Doc. 132)

Motion for Final Dismissal with Prejudice or for the Entry of an Appropriate Spoliation Remedy (Doc. 136)

Order (Doc. 190)

Whether e-discovery costs may be recovered in an award of costs and, if so what costs may be recovered?

Here for the court found that 28 U.S.C. 1920 (4) permits recovery of costs “necessary to duplicate an electronic document in as faithful and complete a manner as required by rule, by court order, by agreement of the parties, or otherwise.” In such instances these costs are recoverable as “the costs of making copies necessarily obtained for use in the case.” However only the costs of creating the copies are to be included and not the preparatory and ancillary costs commonly incurred leading up to or in conjunction with duplication.

Motion for Bill of Costs and Attorney’s Fees (Doc. 192) 

Bill of Costs (Doc. 194) 

Response in Opposition to Bill of Costs (Doc. 200)

Response in Opposition to Motion for Attorney’s Fees (Doc. 201)

Reply in Support of Bill of Costs (Doc. 206)

Reply in Support of Motion for Attorney’s Fees (Doc. 207)

Report and Recommendations (Doc. 215)

Whether a district court may, when awarding “full costs” as authorized by 17 U.S.C. § 505, award costs related to e-discovery, expert witnesses, or jury consulting, or must the court confine the award of “full costs” to the six categories of expenses enumerated in 28 U.S.C. § 1821 and § 1920?

Here, the Court found the term “full costs” means the litigation expenses specified by 28 U.S.C. § 1821 and § 1920. Therefore, a court may not award expenses beyond those six enumerated categories of expenses. Thus, e-discovery litigation expenses may not be recovered through an award of fees and costs for a violation of 17 U.S.C. § 505.

Opening Brief for Appellant

Reply Brief for Petitioner

Answer Brief for Appellees 

Whether inadvertent disclosure of documents covered by attorney client privilege acted as a waiver of that privilege, where the party claiming privilege complied with Rule 26(b)(5)(B)? Moreover, does the lack of a Rule 502 Clawback agreement between the parties affect this result?

Yes and no. The Court found where a party takes reasonable steps to prevent the inadvertent disclosure and rectify inadvertent disclosures under Rule 26(b)(5)(B), that party is entitled to have those documents returned, sequestered, or destroyed.

Additionally, where reasonable, the inability to produce the exact bates numbers of inadvertently produced privileged documents does not prevent a party from rectifying inadvertent disclosure under Rule 26(b)(5)(B).

Lack of a Rule 502 Claw Back agreement does not change this result. However, the Court strongly urges all parties in disputes including ESI and electronic discovery to execute Rule 502 Clawback agreements (footnotes).

Defendant’s Motion to Disqualify Plaintiff’s Counsel (Doc. 185) 

Plaintiff’s Response to Defendant’s Motion to Disqualify Plaintiff’s Counsel (Doc. 190) 

Amended Order Denying Defendant’s Motion to Disqualify Plaintiff’s Counsel (Doc. 219) 

Whether a party may recover e-discovery related costs through a motion for taxation of costs, and if so, which costs may the moving party recover?

Yes, 28 U.S.C. § 1920(4) permits a party to recover “only the costs of creating the produced duplicates.” Here, the court found preparatory or ancillary cost commonly incurred leading up to, in conjunction with, or after duplication are not taxable. Stated differently, production-related costs are not taxable. In Shire Development, the moving party demanded costs expressly incurred to “help facilitate document production” and costs associated with “uploading documents to a database, consulting costs, and costs based on illegible documents.” The court found these costs fell outside of the scope of §1920. Therefore these costs were not taxable.

Defendants Motion for Taxation of Costs [DI 552]

Plaintiffs Opposition to Defendants Motion [DI 553]

Report and Recommendation [DI 557]

Whether a party may recover attorney’s fees and costs billed by an e-discovery manager where the cause of action otherwise permits the recovery of attorney’s fees. Further, if recovery of the fees billed by the e-discovery manager are recoverable, what are the limitations?

Here, the Court found the fees billed by the firm’s e-discovery expert were recoverable where the cause of action permitted recovery of attorney’s fees and costs. However, the Court noted that the “time claimed by an e-discovery expert should relate to appropriate legal work and not merely administrative tasks.” The Court also noted billing entries which contain a mix of legal and administrative work are improper and deducted these entries from the award of attorney’s fees.

Defendant’s Motion to Dertermine Entitlement to Attorney’s Fees (Doc. 262)

Notice of Filing Exhibit in Support of Defendant’s Motion to Determine Entitlement to Attorney’s Fees (Doc. 267)

Plaintiff’s Response in Opposition to Defendan’ts Motion to Determine Entitlement to Attorney’s Fees (Doc. 271)

Defendant’s Reply to Plaintiff’s Response to Defendant’s Motion to Determine Entitlement to Attorney’s Fees (Doc. 272)

Supplemental Brief in Support of Motion for Attorney’s Fees (Doc. 277)

Plaintiff’s Motion For Entitlement to Attorneys’ Fees and Costs

Plaintiff’s Response in Opposition to Defendant’s Supplemental Brief (Doc. 285)

Defendant’s Respone to Plaintiff’s Motion for Entitlement to Attorney’s Fees (Doc. 286)

Defendant’s Reply to Plaintiff’s Response in Opposition to Defendant’s Supplemental Brief (Doc. 289)

Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Motion for Entitlement to Attorney’s Fees (Doc. 290)

Opinion and Order (Doc. 291)

Whether the defendant allowed crucial emails to be deleted after receipt of warnings from opposing counsel demanding he preserve evidence constituted spoliation and if so what form of sanction was warranted?

The court found the defendant’s willful destruction of crucial evidence constituted spoliation and warranted an adverse inference instruction to the jury.

Motion to Compel Discovery (Doc. 42)

Response in Opposition of Motion to Compel Discovery (Doc. 46)

Order on Motion to Compel Discovery [Spoliation and Sanctions] (Doc. 90)

Whether granting the trial court’s grant of a plaintiff’s motion to compel discovery, and order that the parties to share, up to $40,000, the cost of having a computer expert examine defendant management company’s computer systems in order to comply with the discovery request was unduly burdensome.

The District Court reversed and quashed the trial court order finding the order to be unduly oppressive and unwarranted.

Decision

Should the plaintiff’s failure to produce text messages responsive to a Rule 34 request for production justify forensic examination of the plaintiff’s cell phone and personal computer? Further, should this failure to adequately respond to the Rule 34 request for production entitle defendants to awarded attorney’s fees under Rule 37(a)(5)(c)?

The defendant’s request for forensic examination of the plaintiff’s phone and personal computer was denied. The Court found forensic examination was not warranted when weighed against the needs of the of the case and the plaintiff’s privacy interest. The Court noted the defendants failed to provide any facts or information suggesting the plaintiff had altered or tampered any information and a “bare possibility of misconduct” is insufficient to outweigh an individuals privacy interests.

However, the defendant’s motion for attorneys fees and costs under Rule 37(a)(5)(c) was granted. The Court found plaintiff’s counsel possessed a recording of a conversation and text messages, which were responsive to an earlier Rule 34 request for production at the time of the request. These actions justified apportionment of reasonable fees and costs associated with brining the motion to compel.

Motion to Compel Discovery (Doc. 49)

Response in Opposition of Motion to Compel (Doc. 54)

Order on Motion to Compel (Doc. 57)

Whether an individual is entitled to Fourth Amendment protections when the Government conducts a search using cell phone location records that accurately reflect an individual’s movements.

Judgment of the Court of Appeals reversed and remanded for further proceedings. The Court held that an individual has a reasonable expectation of privacy in the record of his/her movements as captured through cell-site location information (CLSI), and that the CLSI provided by Defendant’s wireless carriers constituted a search. Thus, the Government must generally obtain a warrant supported by probable cause before acquiring such information.

Brief for the United States

Reply Brief in Opposition

Opinion

Plaintiff moved to compel discovery where Defendant asserted (1) attorney-client privilege or work product privilege, (2) overbreadth or undue burden, (3) mootness due to amended pleadings, and (4) the withholding of documents for impeachment purposes. Plaintiff also moved for sanctions pursuant to Rule 37.

Motion to compel granted in part. The Court found Defendant’s assertion of work product privilege, based on the compilation of unprivileged documents constituting opinion work product, unpersuasive. Plaintiff’s requests sought the factual basis for Defendant’s denials and affirmative defenses. However, Defendant did not need to identify each responsive document by Bates number to each specific request, and only had to organize the documents in a way that Plaintiff could locate them with reasonable effort. Plaintiff’s overbreadth, mootness, and undiscoverable impeachment evidence arguments were overruled. Because there was some production made by Defendant, and because the Court found Plaintiff was not entitled to a Bates number of every document produced that Defendant deemed responsive, the Court found sanctions unwarranted.

Motion to Compel Discovery and For Sanctions (Doc. 136)

Response in Opposition to Motion to Compel Discovery (Doc. 148)

Order on Motion to Compel and For Sanctions (Doc. 204)

Trustee was inadvertently provided privileged documents, and a request was filed to claw back the privileged documents.

The Court held that the 21 Kirkland & Ellis documents were privileged and trustee was obligated to return the documents. However, trustee was entitled to documents where Trans Health Management, Inc. (THMI) acted as a co-client with Trans Healthcare, Inc. and GTCR Group under the co-client exception to privileged documents.

Motion to Determine Absence of Privilege and Motion to Compel (Doc. 129) 

Motion to Compel Return of Privileged Documents (Doc. 191)

Memorandum in Support of Motion to Determine Absence of Privilege (Doc. 576)

Response to Supplemental Memorandum on Waiver of Privilege (Doc. 591)

Order (Doc. 891)

Trustee sought to pay $70,000 to a computer forensics expert, and the Court granted the trustee’s request. Debra Distler filed a motion for reconsideration.

The Court denied the motion for reconsideration, and found that the $70,000 paid to the computer forensics expert was an allowable expense, as the forensic expert’s services were both actual and necessary to the disposition of the Bankruptcy estate.

Opinion on Trustee’s Application to Pay Administrative Expenses

Application to Pay Administrative Expenses by Trustee

Objection to Trustee’s Application to Pay Administrative Expenses

Class Plaintiffs moved to compel Defendant to provide discovery for eighteen additional custodians. Defendant claimed that additional discovery would impose an undue burden and was not proportional to the needs of the case.

The Court granted in part and denied in part Plaintiffs’ motion to compel. The Court attempted to strike a balance between the need for additional relevant evidence, and the costs it would impose upon Defendant. Therefore, the Court allowed discovery for an additional 6 (six) custodians.

Order on Motion to Compel to Include Additional Custodians (Doc. 349) 

Motion to Compel to Include Additional Custodians (Doc. 276)

Declaration of Peggy Wedgeworth (Doc. 277) 

Response in Opposition of Motion to Compel to Include Additional Custodians (Doc. 286) 

In this bankruptcy case, Plaintiff moved for sanctions and the entry of a default judgment against Defendants for repeated discovery violations.

The Court found that sanctions were warranted against Defendant, as Defendant was uncooperative, delayed discovery and obstructed discovery efforts, made frivolous privilege claims, and filed meritless appeals. However, Defendant’s conduct did not rise to the level of a default judgment, as an entry of default judgment is the most severe sanction. The Court therefore awarded monetary sanctions and attorneys’ fees.

Plaintiff moved to compel documents and further answers to interrogatories.

The Court granted in part and denied in part Plaintiff’s motion to compel. To the extent Defendant objected based on general assertions of privilege and vagueness/overbreadth, the Court granted Plaintiff’s motion to compel, as Defendant did not specifically object and create a privilege log. However, the Court denied Plaintiff’s motion to compel production of some documents, because Plaintiff did not make a good faith effort to communicate with opposing counsel and resolve the dispute beforehand.

Plaintiff’s Motion to Compel (Doc. 34)

Exhibit B to Plaintiff’s Motion to Compel (Doc. 34-3) 

Exhibit C to Plaintiff’s Motion to Compel (Doc.  34-4) 

Defendant’s Response in Opposition to Plaintiff’s Motion to Compel (Doc. 44)

Order on Plaintiff’s Motion to Compel (Doc. 47) 

Defendant moved to compel production of documents from a non-party.  Non-party objected to the subpoenaed documents on grounds that the documents were protected by attorney-client privilege and work product privilege, and the production of the documents would be unduly burdensome.

The Court denied Defendant’s motion to compel. The Court found no merit in Defendant’s attorney-client and work product objections, but found that the motion to compel was overbroad and imposed an undue burden on non-party Beachside Legal Services.

Defendant’s Motion to Compel Production of Documents (Doc. 55) 

Non-Party’s Objection and Response to Motion to Compel Production of Documents (Doc. 59) 

Motion to Overrule Non-Parties’ Objections to Compel Production (Doc. 60) 

Non-Party’s Response to Motion to Overrule Non-Parties’ Objection to Motion to Compel (Doc. 61) 

Order on Motion to Compel (Doc. 62) 

Plaintiff filed a motion to compel a forensic examination of Defendant’s computer, mobile phone, and personal Yahoo email account.

The Court granted Plaintiff’s motion to compel. Based on Plaintiff’s compelling argument that the devices contained relevant information, and taking into account Defendant’s uncooperative behavior, the Court ordered a forensic examination of Defendant’s computer devices and personal email. However, the Court provided for protections against Defendant’s privacy.

Plaintiff’s Motion to Compel Forensic Examination Of Personal Devices and Email Account (Doc. 71) 

Defendant’s Memorandum of Law in Opposition to Plaintiff’s Motion to Compel Forensic Examination (Doc. 82) 

Order on Plaintiff’s Motion to Compel Forensic Examination (Doc. 87) 

Plaintiff filed a motion to compel, seeking production of certain documents and their production in a searchable format. Plaintiff also filed a motion for sanctions.

The Court granted in part and denied in part Plaintiff’s motion to compel. To the extent Plaintiff sought all communications between the general contractor and Defendant, the court held such a request was overbroad. However, the Court compelled production of documents reflecting potential insolvency on behalf of the general contractor as they were relevant and discoverable. Additionally, the Court compelled production of the documents in their native format, as Defendant’s transformation to TIFF images made the documents much more burdensome to search. The Court denied Plaintiff’s motion for sanctions.

Plaintiff’s Motion to Compel and Sanctions (Doc. 57) Part 1

Plaintiff’s Motion to Compel and Sanctions (Doc. 57) Part 2

Plaintiff’s Motion to Compel and Sanctions (Doc. 57) Part 3

Defendant’s Reponse to Motion to Compel and Sanctions (Doc. 61)

Order on Plaintiff’s Motion to Compell and Sanctions (Doc. 83)

Plaintiff filed a motion for sanctions, alleging Defendant failed to produce emails that contained sexually explicit material sent from a lieutenant’s computer.

The Court denied Plaintiff’s motion for sanctions. Defendant reassigned the computer and re-imaged the hard drive according to long-standing practice, and did so before Plaintiff served discovery requests or filed his complaint. The Court thus did not find bad faith in the disposition of the lieutenant’s computer.

Defendant’s Motion to Compel Production (Doc. 46) 

Plaintiff’s Combined Emergency Motion for Sanctions for Spoliation of Evidence (Doc. 80)

Defendant’s Response to Plaintiff’s Combined Emergency motion for Sanctions for Spoliation of Evidence (Doc. 82) 

Order on Motion for Sanctions for Spoliation of Evidence (Doc. 104)

Plaintiff filed a motion to compel production of documents and a motion to compel entry upon land to inspect police computer hard drives.

The Court granted in part and denied in part Plaintiff’s motion to compel production. With respect to documents outlining claims and procedures relating to hostile environment sexual harassment or retaliation for such reports, the Court granted the motion. However, the Court denied production of any documents exceeding the scope of those claims, or any request not reasonably calculated to lead to the discovery of admissible evidence. The Court denied Plaintiff’s motion to compel entry upon land, as the City had an interest in protecting the information on the hard drives and there was no need for Plaintiff to examine the hard drives himself.

Plaintiff’s Combined Motion to Compel Production of Documents and Motion to Compel Entry Upon Land (Doc. 29)

Defendant’s Response to Plaintiff’s Combined Motion to Compel Production of Documents and Motion to Compel Entry Upon Land (Doc. 32) 

Order on Plaintiff’s Combined Motion to Compel Production of Documents and Motion to Compel Entry Upon Land (Doc. 37) 

Plaintiff filed a motion to compel seeking more complete discovery. Plaintiff requested emails and correspondence about her during her employment, and Defendant argued that the request was unduly burdensome because it was not possible to use a key word search on the emails.

The Court granted Plaintiff’s motion to compel. Assuming a forensic expert examined the server data and was able to conduct a search, Plaintiff’s request would not be unduly burdensome. However, if Defendant could establish that an electronic search was not possible, the Court granted Defendant leave to file a protective order.

Plaintiff’s Motion to Compel More Complete Discovery Responses and Documents (Doc. 25)

Defendant’s Response to Plaintiff’s Motion to Compel More Complete Discovery Responses and Documents (Doc. 28) 

Order Granting Plaintiff’s Motion to Compel (Doc. 30) 

Defendant filed motion for sanctions, claiming that Plaintiff altered computer data and concealed data until after discovery ended.

The Court denied Defendant’s motion for sanctions. The Court found the data was added later and not changed or altered. Further, the Court noted that the tomato pick tickets were found later and provided to Defendant, and there was thus no spoliation.

Motion for Sanctions Based on Alteration and Spoliation of Evidence (Doc. 50)

Plaintiff’s Response to Motion for Sanctions (Doc. 80)

Order on Defendant’s Motion for Sanctions (Doc. 105)

Plaintiff filed a fourth and fifth motion for sanctions against Defendants based on Defendants’ discovery obligation failures.

The Court denied Plaintiff’s fourth and fifth motion for sanctions in part. The Court found sanctions against Defendant Greenberg Taurig and Defendant TD Bank were warranted, but that sanctions against individual attorneys were not. Defendants’ production of the Customer Due Diligence form was inadequate and in a form that it was not kept in during the ordinary course of business. Further, Defendants’ failure to produce the Standard Investigative Protocol warranted sanctions, as Defendants could have found and produced the document using a simple key word search. The Court additionally found Defendant Greenberg Taurig and Defendant TD Bank committed numerous additional discovery failures and determined that Defendant TD Bank’s violations were willful. As such, the Court ordered Defendants pay reasonable attorneys’ fees and costs and permitted an inference that TD Bank had knowledge of ongoing fraud.

Plaintiff’s Fourth Motion for Sanctions (Doc. 791) 

Defendant’s Response in Opposition to Plaintiff’s Motion for Sanctions (Doc. 794)

Defendant’s Notice of Production and Withdrawal of Certain Statements Made to the Court (Doc. 825) 

Order on Motion for Sanctions (Doc. 911)

Plaintiff filed a motion to compel, seeking Defendant’s compliance with a Court order to produce imaging of computers and electronic devices. Plaintiff also moved to clarify the Court’s previous order to expedite discovery.

The Court granted Plaintiff’s motion to compel and motion to clarify in part. The Court clarified its previous order and directed that the electronic devices be imaged, with Defendants then searching the image for privileged information and creating a privilege log. The Court ordered both parties to communicate and come up with effective search terms and filters.

Plaintiff’s Expedited Motion for Further Clarification of the Court’s Orders to Expedite Discovery (Doc. 28) 

Defendants’ Response to Plaintiff’s Expedited Motion for Further Clarification of the Court’s Order to Expedite Discovery (Doc. 30) 

Defendant’s Motion for Temporary Relief (Doc. 31)

Plaintiff’s Expedited Motion to Compel Defendants to Comply with the Court’s Order to Produce for Imaging Certain Portable Computers and Electronic Devices, and to Compel Further Compliance with the Court’s Order Regarding Expedited Discovery (Doc. 32)

Order Granting in Part Motions to Clarify and Motion to Compel (Doc. 34)

Plaintiff property management company brought suit against Defendants, seeking a preliminary injunction and an adverse inference for spoliation. Defendants moved to dismiss Plaintiff’s claims.

The Court granted the motions in part and denied them in part. The Court granted Plaintiff’s preliminary injunction on Plaintiff’s breach of restrictive covenant claim and Plaintiff’s tortious interference with restrictive covenants claim. However, the Court denied Plaintiff’s preliminary injunction on a Computer Fraud and Abuse Act (CFAA) claim and tortious interference with customers claim. With respect to Plaintiff’s CFAA claim, Plaintiff could not show that Defendants intended to defraud Plaintiff, and Defendant was therefore entitled to a motion to dismiss. Plaintiff’s motion for an adverse inference instruction was also denied, as Plaintiff did not prove bad faith on behalf of Defendants. The Court found Defendant Kravit’s testimony that she did not know opening files affected the metadata was credible.

Defendant’s Motion to Dismiss (Doc. 57)

Plaintiff’s Motion to Strike Affidavit (Doc. 100)

Plaintiff’s Motion for Adverse Inference or Injunction due to Spoliation (Doc. 102)

Plaintiff’s Motion to Amend and Supplement Preliminary Injunctive Relief (Doc. 128)

Motion to Strike Supplemental Memorandum (Doc. 146) 

Order Granting in Part Motion for Preliminary Injunction (Doc. 150) 

Defendant insurance company moved to compel the production of a funeral video in a case where the death of a life insurance beneficiary was not conclusively proven by Plaintiff.

The Court granted Defendant’s motion to compel. Plaintiff failed to give a proper basis for any work product objection and constantly changed his assertion as to whether video of the funeral or interment existed. The Court ordered Plaintiff to produce the video if it existed, as well as any other videos obtained by Plaintiff, and to explain his reasoning behind the assertion that the video did not exist when Plaintiff had previously argued numerous times such a video existed.

Defendant’s Motion to Compel Production of Funeral Video (Doc. 36)

Plaintiff’s Response in Opposition to Motion to Compel Production of Funeral Video (Doc. 40) 

Order on Defendant’s Motion to Compel Production of Funeral Video (Doc. 57) 

Defendants appealed the trial court’s imposition of sanctions for continuous violation of discovery orders upon Plaintiff’s motion for contempt and sanctions.

The Court affirmed the trial court’s sanctions, finding they were not an abuse of discretion. Defendants were presented with numerous opportunities to show cause why they should not be sanctioned, but failed to provide the requisite discovery despite an eventual showing that they had responsive documents the entire time. The Court held that the trial court had followed all procedural requirements and was fully justified in issuing such a large amount of sanctions, despite scant precedent for such a large amount.

Decision

In a diversity suit alleging a number of contract and tort claims, each party moved for sanctions and summary judgment. The issue was whether bad faith existed, sufficient to support a finding of sanctions.

The Court denied Defendant’s motion for sanctions, as the Court did not find Plaintiff destroyed his old hard drive in bad faith. Plaintiff claimed his hard drive crashed, and had corroborating evidence indicating such. Further, Plaintiff did not receive Defendant’s first production request until after the hard drive had already been replaced, months after the start of litigation. The Court also denied Plaintiff’s cross-motion for sanctions, finding Defendant’s motion was not filed merely to harass Plaintiff. With respect to the summary judgment claims, the Court granted in part and denied in part Defendant’s motion for summary judgment, and denied Plaintiff’s cross-motion for summary judgment.

Defendant’s Motion for Sanctions (Doc. 58) 

Plaintiff’s Response to Motion for Sanctions and Cross Motion for Sanctions (Doc. 67)

Order on Motion for Sanctions (Doc. 77)

Defendant sought sanctions for Plaintiff’s failure to produce all responsive documents in a timely fashion, and moved to compel the inspection of Plaintiff’s hard drives. Defendant additionally sought to quash Plaintiff’s non-party subpoenas that did not comply with the Court’s discovery deadline.

Motions granted in part and denied in part. The Court imposed lesser sanctions upon Plaintiff (such as attorneys’ fees and costs incurred in filing motions), because Plaintiff did not justify its failure to abide by discovery rules and court orders. The Court held that Defendant was also entitled to a limited inspection of Plaintiff’s hard drives, since the benefit of the inspection outweighed the burden. With respect to the protective order for the non-party subpoenas, the Court granted the protective order because Plaintiff’s discovery requests were not timely.

Defendant’s Motion for Sanctions, Motion to Compel Inspection of Computer and Request for Oral Argument (Doc. 41) 

Plaintiff’s Response to Motion for Sanctions, Motion to Compel Inspection of Computer and Request for Oral Argument (Doc. 42) 

Defendant’s Motion for Protective Order and Motion for Sanctions (Doc. 77)

Defendant’s Second Motion for Protective Order, Motion to Stay Discovery and Motion for Sanctions (Doc. 81)

Plaintiff’s Response to Defendant’s Motion for First and Second Protective Order and Motion for Sanctions (Doc. 84) 

Defendant’s Motion to Compel and Motion for Sanctions (Doc. 92) 

Plaintiff’s Response to Defendant’s Motion to Compel and Motion for Sanctions (Doc. 101) 

Plaintiff’s Notice of Compliance (Doc. 112) 

Order on Doc. 41, Doc. 42, Doc. 77, Doc. 81, Doc. 84, Doc. 92, Doc. 1o1, Doc. 105, and Doc. 112 (Doc. 113) 

Defendant insurer moved to compel Insurer moved to compel production of responsive documents and a forensic analysis of Plaintiffs’ computers. Plaintiff objected alleging production would result in duplicative discovery and would be unduly burdensome based on Plaintiffs’ status as non-profit condominium associations

The Court granted Defendant’s motion to compel. As Plaintiffs did not timely object to Defendant’s motion, their objections were waived. However, even assuming their objections were not waived, the Court held Defendant’s request for electronically stored information would not result in duplicative discovery, and that Defendant’s desire for a forensic examination was fair based on Plaintiffs’ uncooperative behavior in examining the electronically stored information. The Court therefore ordered an independent examiner to conduct a forensic analysis of Plaintiffs’ computers.

Motion to Compel Production and Forensic Examination (Doc. 59) 

Plaintiff’s Response in Opposition to Defendant’s Motion to Compel Production and Forensic Examination (Doc. 68)

Order on Motion to Compel Production and Forensic Examination (Doc. 85)

Plaintiffs filed for discovery sanctions against Defendant for Defendant’s numerous discovery and production failures.

The Court granted Plaintiffs’ motion for sanctions in part. The Court found that Defendant did not confer in good faith with Plaintiffs as to its discovery obligations. Defendant’s keyword search was inadequate and not conducted in cooperation with Plaintiffs. Moreover, Defendant acted with “purposeful sluggishness” by not properly identifying custodians and databases for production, not timely complying with discovery orders, and providing documents in a format rendering them unreadable. However, the Court decided to confer with the parties and decide on specific sanctions at a later date.

Plaintiff’s Motion for Order Imposing Discovery Sanctions (Doc. 256) 

Response in Opposition to Motion for Sanctions (Doc. 278) 

Order on Motion for Sanctions (Doc. 393) 

Plaintiff moved for spoliation sanctions against the County after it failed to preserve surveillance footage showing events that transpired at an airport, despite Plaintiff’s letter notifying the County to preserve the evidence.

The Court denied Plaintiff’s motion for sanctions. Although the County was negligent in its handling of the surveillance footage, Plaintiff could not prove bad faith on behalf of the County, nor could he prove that the footage would have contained evidence or that the evidence was crucial to the case. However, the Court allowed Plaintiff to present evidence of his preservation requests and of the County’s failure to preserve the footage at trial.

Motion to Amend Complaint and Included Motion for Sanctions (Doc. 111)

Response in Opposition to Motion to Amend Complaint (Doc. 114) 

Order on Plaintiffs Request Sanctions (Doc. 119)

Plaintiff moved to compel better responses to production requests in a slip and fall case that took part on Defendant’s vacation cruise ship.

The Court granted Plaintiff’s motion to compel in part. Plaintiff sought information about procedures and guidelines on Defendant’s ship in the event of an injury, which the Court held was reasonably calculated to lead to the discovery of admissible evidence.

Motion to Compel Better Responses to Request for Production (Doc. 49)

Response in Opposition to Motion to Compel Better Responses (Doc. 61)

Order on Motion to Compel (Doc. 73) 

Defendant moved to suppress the fruits of an illegal search, stating probable cause could not be imputed to agents that did not conduct the actual search. Additionally, Defendant moved to suppress wiretap evidence obtained from his cell phone, alleging the government did not show necessity for the wiretap, that the government failed to minimize the intercepted conversations, and that the wiretap affidavits contained intentional omissions.

The Magistrate recommended that Defendant’s motions be denied. With respect to Defendant’s motion to suppress the fruits of an illegal search, the Court stated that Defendant’s collective knowledge claim was without merit, as the agents involved in the investigation communicated with each other and allowed for probable cause to be imputed between them. On Defendant’s motion to suppress wiretap evidence, the Court stated the necessity requirement was sufficiently met, as officers could not fully establish the scope and membership of the organization being monitored. Moreover, the Magistrate found that the government had complied with minimization requirements, as Defendant did not allege any particular conversation that the government did not minimize, and because circumstances warranted a wiretap to uncover the widespread network. Finally, with respect to intentional omissions, the Court held that Defendant failed to identify any omissions.

Defendant’s Motion to Suppress Fruits of Illegal Search and Seizure (Doc. 320)

Government’s Opposition to Defendant’s Motion to Suppress (Doc. 362)

Post-Hearing Reply to Government’s Opposition to Defendant’s Motion to Suppress (Doc. 419)

Government’s Response to Post-Hearing Reply to Government’s Opposition to Defendant’s Motion to Suppress (Doc. 422) 

*Order Not Available

Defendant moved to suppress wiretapped phone calls, alleging a wiretap was unnecessary based on existing evidence and that there was false information provided in the wiretap affidavit by a confidential source.

The Court recommended that Defendant’s motion to suppress be denied. Although the government had other sources for obtaining evidence, the Court found a wiretap was still necessary for identifying the full scope of the organization and its participants. Additionally, the Court found no merit to Defendant’s assertion that the wiretap affidavit was based on false information, as there was only evidence of one potential phone call from the confidential source that was suspicious.

Defendant’s First Motion to Suppress Intercepted Wire Communications and Request for Evidentiary Hearing (Doc. 141) 

United States Response to Motion to Suppress Intercepted Wire Communications and for Disclosure of Confidential Informants (Doc. 173) 

Report and Recommendation (Doc. 194) 

Defendants challenged the district court’s denial of their motion to suppress evidence found from computer searches, alleging the search went beyond the scope of the warrants and that the lack of a search protocol made the warrants deficient.

The Court affirmed the district court’s denial of Defendants’ motion to suppress. There was no evidence that agents disregarded the terms of the search warrants, and probable cause existed based on a task force coordinator’s observation of computers in Defendant Portlock’s office. Moreover, the lack of a written search protocol did not infringe on Defendants’ Fourth Amendment rights, as the computer examiner searched Defendants’ hard drives using keyword searches and did not examine non-responsive files.

Initial Brief for Appellant

Brief of the United States (Criminal Case)

Reply and Cross Appeal Brief For Appellant 

Reply Brief of the United States

Defendant appealed his conviction for possession of child pornography. Specifically, Defendant challenged the district court’s denial of his motion to suppress evidence taken from his laptop.

The Court affirmed the trial court’s denial of Defendant’s motion to suppress. Defendant was at the police station for failing to comply with sex offender notification law in Florida and for providing a fake name in the investigation of an apartment fire. At the police station, Defendant directed authorities to get his laptop out of his car so that he could show off a flight simulator program. With Defendant’s consent, authorities used the laptop and opened a folder titled “auto racing 13,” believing it to be the flight simulator program, as Defendant’s laptop scroll function was not working which made it hard to discern different folders and programs. Upon opening the program, authorities discovered child pornography in plain view. The Court thus held because the authorities happened upon the file in plain view with Defendant’s consent, the motion to suppress was correctly denied. Moreover, because Defendant gave consent to continue searching, a search warrant was not required.

Initial Brief for Appellant

Brief for the United States

Defendant sought review of the First District Court of Appeal’s ruling denying a motion to suppress, which was in direct conflict with the Second District Court of Appeal as to whether a warrantless search of a cell phone violated a Defendant’s Fourth Amendment rights.

The Court quashed the First District Court of Appeal’s ruling and held that the good faith exception relied on by the First DCA did not apply in the instant case.  Officers conducting the warrantless search of Defendant’s cell phone relied on unsettled case law that was still under review at the time of the search.

Opinion

Defendant appealed the district court’s denial of a motion to suppress evidence of child pornography from his hard drive.

The Court affirmed the district court’s denial. The evidence was discovered when Defendant went to transfer data from his inoperable laptop. A private actor discovered the child pornography and notified authorities. Since the Fourth Amendment does not apply to private actors, the Court affirmed the denial of the motion to suppress. The Court also stated the evidence would have been admissible under the doctrine of inevitable discovery.

Brief of Appellant

Brief of the United States

Opinion

Defendant appealed his conviction for possession of child pornography, alleging his Fourth Amendment rights were violated when the government accessed the files without a warrant while searching his computer for counterfeit software.

The Court affirmed the district court’s denial of Defendant’s motion to suppress evidence on his laptop, uninstalled hard drive, and external hard drive (files on the computer tower were suppressed). The files were interspersed with the counterfeit software files and were in plain view. Moreover, Defendant’s claim that the time-stamp evidence was fruit of the poisonous tree was without merit, as the computer tower itself was not suppressed, merely the files on the computer tower containing child pornography.

Opinion

Plaintiffs moved for spoliation sanctions for the deletion of video surveillance evidence recorded inside Defendant’s store.

The Court recommended that Plaintiffs’ motion for spoliation sanctions be granted, as the Court found a clear finding of bad faith. Defendant intentionally allowed the surveillance footage to be overwritten despite knowing it was crucially important to litigation and that Plaintiffs had requested the footage be preserved. As such, the Court recommended that Defendants be precluded from defending based on probable cause, pay Plaintiffs’ expenses for the instant motion, and pay Plaintiffs’ one-half of the expenses associated with thee motion for expedited production of video surveillance.

Plaintiff’s Motion for Sanctions for Spoliation of Evidence (Doc. 33) 

Response to Plaintiff’s Motion for Sanctions for Spoliation of Evidence (Doc. 56) 

Report and Recommendation (Doc. 73) 

In a breach of contract case, Plaintiff filed a motion to compel defendant to restore and search backup tapes containing deleted emails. Plaintiff also sought sanctions for alleged spoliation, and motioned for letters of request from foreign countries.

The Court granted Plaintiff’s motion to compel in part and denied it in part. Because Defendant established that restoring the backup tapes would result in an undue burden, and because Plaintiff did not object to electronically stored information produced from March 31, 2005 and onward, the Court held that the backup tapes from that date would contain largely duplicative information. However, the Court held the December 2004 backup tape would not contain duplicative information and required Defendant to reconfigure the tape. The Court also denied Plaintiff’s request for spoliation sanctions, as Plaintiff could not prove the September 9, 2004 letter triggered a duty to implement a litigation hold, and Plaintiff failed to demonstrate bad faith in the deletion of the emails even if a duty were triggered. Moreover, based on comity and the potential for duplicative evidence, the Court denied Plaintiff’s motion for letters of request from foreign countries.

Motion to Compel Defendant to Remedy Spoliation of Documents (Doc. 86) 

Response to Motion to Compel (Doc. 90) 

Order on Motion to Compel (Doc. 136) 

Plaintiff filed a motion to compel, seeking documents demonstrating Defendant’s financial status and Defendant’s document retention policies.

The Court denied Plaintiff’s motion to compel with respect to documents demonstrating Defendant’s financial status. Although Plaintiff claimed discovery of the documents would be related to its punitive damages claim, Plaintiff needed to show a reasonable basis for punitive damages before it was entitled to discovery, and Plaintiff failed to do so as there was not sufficient evidence that Defendant intentionally and unjustifiable interfered with its business. Moreover, the Court denied Plaintiff’s motion to compel with respect to Defendant’s document retention policies, as Defendant later produced the alleged spoliated documents and explained why they were initially missing.

Motion to Compel Production of Documents (Doc. 87) 

Response in Opposition to Motion to Compel Production of Documents (Doc. 96) 

Order on Motion to Compel (Doc. 114)

Defendant moved to compel production of Plaintiff’s cell phone, as well as documents from Plaintiff.

The Court denied Defendant’s motion to compel and held that the production of Defendant’s phone was inappropriate in the instant case, as Defendant’s production requests did not reference Plaintiff’s cell phone, and Plaintiff had a protected privacy interest in her cell phone. Additionally, Plaintiff provided an affidavit denying any responsive documents in her possession. The Court thus stated she did not have to respond further to document requests.

Motion to Compel Production of Documents (Doc. 31) 

Response in Opposition to Motion to Compel Production of Documents (Doc. 35) 

Order on Motion to Compel (Doc. 38) 

Defendants petitioned for a writ of certiorari to quash discovery order, alleging the order was overbroad and unduly burdensome.

The Court granted Defendants’ motion to quash the trial court’s motion to compel. Because Plaintiff’s theory of liability dealt with a specific material and its storage, similar products using the same material and storage methods were not overbroad. However, because Defendant admitted the examination of cover sheets would be far less burdensome and Plaintiff’s counsel offered to examine the 4200 cover sheets himself, the trial court’s motion to compel was unduly burdensome on Defendants.

Decision

Motion to quash subpoena seeking forensic investigation of non-party’s personal computer.

The Court granted the motion to quash in part, and denied it in part. There was no dispute that the computers or similar devices contained relevant information calculated to lead to the discovery of admissible evidence. However, the Court still wished to balance Ms. Thayer’s (non-party) privacy interests. Therefore, the Court ordered a computer forensics expert to examine the devices with Ms. Thayer present, and directed the expert to keep any information other than the subpoenaed information confidential.

Motion to Quash Subpoena from Non-Party (Doc. 39) 

Response to Motion to Quash Subpoenas (Doc. 46)

Plaintiff’s Response in Support of Motion to Quash (Doc. 47) 

Order on Motion to Quash (Doc. 60) 

In a Racketeer Influenced and Corrupt Organization Act case, Plaintiff alleged Defendants defrauded roughly $23 million. Plaintiff moved to compel Defendants to respond to Plaintiff’s request for documents.

The Court granted Plaintiff’s motion to compel based on Defendants’ unresponsiveness to discovery responsibilities and inability to state a good cause for not providing the required information. The Court ordered Defendants to respond with an affidavit outlining their procedure for identifying responsive documents, and called for an independent expert to examine Defendants’ computer system. Based on Defendants’ sluggish response with no valid explanation, the Court ordered Defendants to pay the cost of Plaintiff’s motion to compel.

Ex Parte Motion to Compel Response to Request for Documents (Doc. 51) 

Memorandum of Law in Support of Motion to Compel Response to Request for Documents (Doc. 52) 

Plaintiff’s Response to Motion to Compel (Doc. 62) 

Order on Motion to Compel (Doc. 75) 

Plaintiff filed a motion to compel, claiming Defendants needed better responses to discovery requests.

The Court denied Plaintiff’s motion to compel, and noted that Plaintiff’s counsel did not make a good faith effort to resolve the issues in the motion before filing it, as Defendants agreed to produce better responses to all but three of the discovery requests prior to the order. Plaintiff sought the hard drives of Defendants used for Balfour Beatty business purposes, but made no specific requests as to material contained on the hard drives. Based on Defendants’ cooperation, the Court noted an inspection of Defendants’ hard drives would amount to little more than a fishing expedition.

Motion to Compel (Doc. 33) 

Response to Motion to Compel (Doc. 36) 

Order on Motion to Compel (Doc. 37) 

Hatfield appealed the trial court’s granting of a temporary injunction, asserting that AutoNation did not show irreparable harm and that there was no proof the information Hatfield took was subject to Florida’s Uniform Trade Secrets Act.

The Court affirmed the trial court’s temporary injunction. Hatfield misappropriated materials from AutoNation and sent himself emails and attachments with proprietary data. Therefore, AutoNation demonstrated irreparable harm and a likelihood of success on the merits. Further, because of the trade secret information, any other remedy was inadequate at law, and it was clearly within the State’s interest to protect confidential information.

Decision

In a Fair Labor Standards Act case for uncompensated work, Defendant motioned to compel the production of documents.

The Court denied Defendant’s motion to compel and held that the request for production of all social media information from 7 AM to 7 PM in a three year period was unduly burdensome and overbroad. Further, the Court noted that Plaintiff was only seeking compensation for days in which she clocked in and out of work, which would have eliminated 69 weeks of potential discovery.

Motion to Compel (Doc. 36) 

Memorandum in Opposition to Motion to Compel (Doc. 38)

Order on Motion to Compel (Doc. 39) 

Plaintiff moved to compel Defendants to schedule depositions, provide certain documents in hard copy format, and to supplement discovery responses.

The Court granted Plaintiff’s motion to compel in part and denied it in part. The Court ordered Plaintiff and Defendant to schedule depositions, and held Defendant’s production of electronic files in a .max format with an inexpensive program to view the files  was sufficient. Additionally, the Court ordered Defendant to supplement the discovery responses at issue.

Motion to Compel (Doc. 93) 

Response in Opposition to Motion to Compel (Doc. 124)

Order on Motion to Compel (Doc. 144) 

Plaintiff moved to compel Defendant to provide further discovery, alleging Defendant was unprepared during depositions.

The Court granted Plaintiff’s motion to compel, holding that Defendant needed to provide better answers. The Court provided Defendant with specific actions it could take to be better prepared to testify. However, the Court denied Plaintiff’s request for expenses since Defendant made a good faith effort to comply with the court’s earlier directives.

Second Motion to Compel (Doc. 107) 

Memorandum in Opposition to Second Motion to Compel (Doc. 109) 

Reply in Support of Motion to Compel (Doc. 114) 

Order on Motion to Compel (Doc. 117) 

Plaintiff filed a motion to compel non-party discovery, and the non-party moved to quash Plaintiff’s subpoena.

The Court denied Plaintiff’s motion to compel and granted non-party Lumesis’ motion to quash. The Court held that Plaintiff’s lack of specific evidence of harm and assertion that it lost a single client led to a belief that Plaintiff was proceeding with the lawsuit based on speculation. The Court opined discovery would be asymmetrical, as Defendant and Lumesis would bear the burden of the majority of discovery, and stated Lumesis’ offer to run hash values and keyword searches was sufficient to identify if Plaintiff’s confidential information existed on Lumesis’ system.

Motion to Quash Subpoena (Doc. 67) 

Amended Motion to Compel Discovery Responses (Doc. 68)

Response to Amended Motion to Compel (Doc. 72) 

Response to Motion to Quash (Doc. 73) 

Order on Motion to Quash and Motion to Compel (Doc. 81) 

Plaintiff filed an amended motion to review costs. The Court had to decide how much to reduce Defendant’s award of costs based on Plaintiff’s inability to pay.

The Court granted Defendant’s motion in part. Based on Plaintiff’s indigent status, the Court found a reduction of 50% to be the proper amount to reduce Plaintiff’s costs. Plaintiff’s costs were therefore reduced from $2815.65 to $1407.82.

Motion to Review Costs (Doc. 84) 

Response in Opposition to Motion to Review Costs (Doc. 86)

Order on Motion to Review Costs (Doc. 92)

Plaintiff filed an amended motion to review costs. The Court had to decide how much to reduce Defendant’s award of costs based on Plaintiff’s inability to pay.

The Court granted Defendant’s motion in part. Based on Plaintiff’s indigent status, the Court found a reduction of 50% to be the proper amount to reduce Plaintiff’s costs. Plaintiff’s costs were therefore reduced from $2144.05 to $1072.02.

Motion to Review Costs (Doc. 86) 

Response in Opposition to Review Costs (Doc. 88)

Order on Motion to Review Costs (Doc. 94)

Non-party Simon Property Group motioned to quash subpoenas, alleging compliance with the subpoenas would be overly burdensome.

The Court denied Simon’s motion to quash. The attorneys did not engage in a serious effort to resolve the dispute before the subpoenas were issued, and were therefore in clear violation of local court rules and Rule 45 of the Federal Rules of Civil Procedure. The 3 minute 11 second phone conversation did not qualify as a “serious effort.”

Motion to Quash Subpoenas or Motion to Limit Discovery (Doc. 42) 

Response in Opposition to Motion to Quash or Limit Discovery (Doc. 47) 

Reply in Support of Motion to Quash or Limit Discovery (Doc. 55)

Sur-Reply in Opposition to Motion to Quash or Limit Discovery (Doc. 57)

Order on Motion to Quash (Doc. 61)

Plaintiff moved to compel production of emails that were previously withheld.

The Court granted Plaintiff’s motion to compel in part. Although Plaintiff showed a substantial need for production of the email chain and the inability to obtain the information elsewhere, Defendant’s work product privilege still protected against the disclosure of the information. However, with respect to the August 27 email chain, Defendant was unable to show a work product privilege objection and the Court granted the motion to compel with respect to the chain.

Motion to Compel Production of Withheld Documents (Doc. 53) 

Memorandum in Opposition to Motion to Compel (Doc. 59)

Order on Motion to Compel (Doc. 68) 

Response in Opposition to Motion for Sanctions (Doc. 73) 

Notice of Submission for In Camera Inspection (Doc. 89) 

Order Granting in Part Motion to Compel (Doc. 91)

Defendant filed a first amended motion to dismiss challenging violations of the Computer Fraud and Abuse Act (CFAA) and the Stored Communications Act (SCA).

The Court denied Defendant’s motion to dismiss. At the Rule 12(b)(6) stage, Plaintiff’s allegations under the CFAA and SCA were enough to demonstrate that the claim was plausible on its face. With respect to the CFAA, Defendant could not demonstrate that Plaintiff did not suffer in excess of $5000 in loss, that the computer was not a protected computer, or that she did not gain unauthorized access or exceed access. Further, under the SCA, Defendant could not demonstrate the material was readily accessible to the public, that Plaintiff did not sufficiently allege a “facility,” or that she did not gain unauthorized access or exceed access.

Amended Motion to Dismiss (Doc. 32) 

Response in Opposition to Amended Motion to Dismiss (Doc. 34) 

Order on Motion to Dismiss (Doc. 37)

Defendant filed motion to compel an examination of Plaintiff’s computer and law firm server. Defendant also moved for spoliation sanctions.

The Court denied Defendant’s motion to compel. The Court held that Plaintiff had already provided discoverable material that would likely have been duplicative and had sufficiently shown that additional discovery would be unduly burdensome. Defendant was not able to demonstrate that the benefit of additional discovery, of which Defendant was not even certain what to search for, would outweigh Plaintiff’s burden. Therefore, the Court also denied Defendant’s motion for spoliation sanctions.

Motion for Forensic Examination (Doc. 119) 

Response in Opposition to Motion for Forensic Examination (Doc. 121)

Order on Motion to Compel Forensic Examination (Doc. 135) 

In a sexual harassment case, Plaintiff moved for an adverse inference instruction for the destruction of video surveillance footage.

The Court denied Plaintiff’s adverse inference instruction. Although the Court found that Defendant had a duty to preserve the video surveillance when one of the women reported seeking an attorney, and the Court found the surveillance footage was crucial in establishing Plaintiff’s case, the Court ultimately found that Defendant’s failure to preserve the footage did not amount to bad faith. The Court, however, did allow Plaintiff to present evidence of Defendant’s document retention policy at trial.

Motion for Adverse Inference Based on Bad Faith Destruction of Evidence (Doc. 141)

Response in Opposition to Motion for Adverse Inference (Doc. 164) 

Order on Motion for Adverse Inference (Doc. 171) 

Plaintiff moved to compel production of forensic images and devices, alleging discrepancies in the application and system metadata, and also moved to compel production of a production log. Defendant moved to compel entries on Plaintiff’s privilege log.

The Court denied Plaintiff’s motion to compel production of forensic images and devices, stating that any such discrepancies were not unusual and that Plaintiff did not explain why the discrepancies would be dispositive. Moreover, the Court saw no reason to expand discovery beyond the initial agreement and unfairly burden Defendant. Additionally, the Court denied Plaintiff’s motion to compel production of a production log in part, finding that Defendant maintained their Category 1 and 2 documents as they were kept in the ordinary course of business. However, the Court found that Defendant’s conversion of Category 3 documents did not produce them as kept in the ordinary course of business. The Court therefore ordered a production log of Category 3 documents identifying responsive documents. With respect to Defendant’s motion to compel, the Court granted Defendant’s motion and held Plaintiff needed to produce a categorical privilege log organizing the documents into categories to allow Defendant to assess validity.

Motion to Exclude Plaintiff’s Untimely Expert Reports and Related Testimony (Doc. 106) 

Motion to Compel Production of Forensic Images and Devices and Production Log (Doc. 109)

Motion to Compel Entry on Plaintiff’s Privilege Log of Certain Documents Predating Discovery (Doc. 111) 

Amended Motion to Compel Production of Forensic Images and Devices and Production Log (Doc. 120) 

Order on Motions for Miscellaneous Relief (Doc. 172)