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In re Sussman

Case Date: 07/07/2020
Citation: 2020 U.S. App. LEXIS 21010; 2020 WL 3790714
Court Type: Federal Circuit Court
Court: 11th Circuit Court of Appeals (11th Cir.)
Judge: Circuit Judge: Per Curiam
Issues:

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)

Resolution:

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.

Relevant Documents:

Order

E-Discovery Issues: Motion for Sanctions, Motion for Spoliation
E-discovery Tags: Preservation and Collection, Sanctions, Spoliation
E-discovery subjects: Computer, Internet usage

Properties of the Villages, Inc. v. Kranz

Case Date: 11/02/2020
Citation: 2020 WL 6393834 (M.D. Fla. Nov. 2, 2020); 2020 U.S. Dist. LEXIS 203963
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Philip R. Lammens
Rule(s): Rule 26(b)(1); Rule 37(a)
Issues:

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?
Resolution:
  • 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.
Relevant Documents:

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

E-Discovery Issues: Discovery Order, Motion to Compel, Production Request
E-discovery Tags: Proportionality, Relevancy
E-discovery subjects: Email, Text message

Marine Depot, International, Inc. v. James River Group, Inc.

Case Date: 12/30/2020
Citation: 2020 WL 7864100 (S.D. Fla. Dec. 30, 2020)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Lauren F. Louis
Rule(s): Rule 37
Issues:

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?

Resolution:

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.

Relevant Documents:

Motion for Sanctions

Plaintiff’s Response

Reply to Response to Motion

E-Discovery Issues: Discovery Order, Motion for Sanctions, Motion to Compel, Production Request
E-discovery Tags: Sanctions, Search
E-discovery subjects: Electronically stored information

Freedom Medical Inc. v. SEWPERSAUD

Case Date: 11/03/2020
Citation: 2020 WL 6449312 (M.D. Fla. Nov. 3, 2020)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: Roy B. Dalton Jr.
Issues:

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.

Resolution:

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.

Relevant Documents:

Order

Plaintiff’s Motion for Order to Show Cause

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

Order to Show Cause

E-Discovery Issues: Contempt of Court, Preliminary Injunction, Preservation, Temporary Restraining Order
E-discovery Tags: Email, Preservation and Collection, Spoliation
E-discovery subjects: Email, Text message

In Re: 3M Combat Arms Earplug Products Liability Litig.

Case Date: 10/15/2020
Citation: 2020 WL 6140469; 2020 U.S. Dist. LEXIS 192550
Court Type: Federal District
Court: Northern District of Florida (N.D. Fla.)
Judge: Federal Magistrate Judge: Gary R. Jones
Rule(s): Rule 26(b)(1); Rule 34(a)(1); Rule 45
Issues:

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?
Resolution:

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.

E-Discovery Issues: Discovery Order, Motion for Forensic Inspection, Preservation
E-discovery Tags: Data Recovery, Forensic Analysis/Examination, Privacy, Proportionality, Relevancy
E-discovery subjects: Cell phone, Electronically stored information, Social Media, Text message

Gross v. American Federated Title Corp.

Case Date: 12/16/2020
Citation: 2020 WL 7379415; 2020 Fla. App. LEXIS 17879
Court Type: District Court of Appeal
Court: Fla. 3d DCA
Judge: Judge: Thomas Logue
Issues:

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.

Resolution:

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.

E-Discovery Issues: Discovery Order, Production Request
E-discovery Tags: Attorney-Client, Privilege, Work Product
E-discovery subjects: Computer, Electronically stored information

In re: Able Body Temporary Services, Inc.

Case Date: 11/19/2020
Citation: 2020 WL 8611156 (M.D. Fla. Nov. 19, 2020)
Court Type: Bankruptcy
Court: Middle District of Florida (M.D. Fla.)
Judge: Bankruptcy Judge: Caryl E. Delano
Rule(s): Fed. R. Civ. P. 37(e)(2)
Issues:

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:

  • 1. “Regions had knowledge of the kite prior to June 28, 2010, and in the 5 month period of time during which the Bank Statement Backup was not produced (from December 2009 through mid-May 2010);”
  • 2. “Regions’ actions violated its uncollected funds policy and the policies and procedures of the BSA/AML Monitoring and Reporting Operations Department;” and
  • 3. “Regions did not have a security interest emanating from grants of provisional credit in the 5 month period of time during which the Bank Statement Backup was not produced (from December 2009 through mid-May 2010).”

In its opposition to the Adverse Inference Motion, Regions contended that:

  • 1. The Missing Documents either do not exist or that Regions produced all of the documents that could be located;
  • 2. That Plaintiff did not show that the Missing Documents are crucial;
  • 3. That Plaintiff has not shown that Regions tampered with or concealed any of the Missing Documents in bad faith;
  • 4. That the alleged Missing Documents do not support the requested sanction; and
  • 5. That Plaintiff seeks an adverse inference with respect to claims that she cannot pursue under the Eleventh Circuit’s decision in Isaiah v. JPMorgan Chase Bank,  and the request must therefore be denied as moot.
Resolution:
On the record presented by Plaintiff in support of the Adverse Inference Motion, the Court could not find that Regions intentionally withheld documents from production, acted in bad faith in failing to produce documents, or destroyed, tampered with, or concealed documents.
In addition, with respect to certain of the documents such as the DepositChek Advance Notification of Return Report and Searchspace alerts, the Court could not find that any such documents even existed.
Further, as the Court’s rulings on the parties’ pending motions for partial summary judgment demonstrated, the Court concurred with Regions that the alleged “Missing Documents” did not have an impact on Plaintiff’s prima facia case on her fraudulent transfers claims, her aiding and abetting claims, or her unjust enrichment claims. Finally, as the Court held in its earlier order denying the Terminal Sanctions Motion, the Court may consider a less drastic sanction for the alleged abuses, and it is appropriate to reserve jurisdiction on this issue.
The Court ordered that the Adverse Inference Motion be denied, however, the Court reserved jurisdiction to address the issues of monetary sanctions for Regions’ alleged discovery abuses.
Relevant Documents:

Order

Opposition

Reply

E-Discovery Issues: Adverse Inference, Motion for Sanctions
E-discovery Tags: Sanctions
E-discovery subjects: Electronically stored information

Certified Collectibles Group, LLC v. Globant, LLC

Case Date: 01/14/2021
Citation: 2021 WL 129932 (M.D. Fla. Jan. 14, 2021)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Anthony E. Porcelli
Rule(s): 37; 33
Issues:

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?
Resolution:

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.

 

Relevant Documents:

Order

E-Discovery Issues: Discovery Order, Motion for Sanctions, Motion to Compel, Production Request
E-discovery Tags: Sanctions

Swearingen v. Pretzer

Case Date: 12/21/2020
Citation: 2020 WL 7488128; 310 So. 3d 1084; 2020 Fla. App. LEXIS 18303
Court Type: District Court of Appeal
Court: Fla. 1st DCA
Judge: Associate Judge: Scott D. Makar
Rule(s): Rule 34, Fed. R. Crim. Pro.
Issues:

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.

Resolution:

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

E-Discovery Issues: Discovery Order, Preservation, Temporary Restraining Order
E-discovery Tags: Data Retention, Preservation and Collection
E-discovery subjects: Electronically stored information

Watkins v. Session

Case Date: 02/18/2021
Citation: 2021 WL 663759; 2021 U.S. Dist. LEXIS 31032
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal District Judge: Roy K. Altman
Rule(s): Fed. R. Civ. P. Rule 12 and 56
Issues:

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.”
Resolution:

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 relevantSee 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.
Relevant Documents:

Opinion

Response to Motion to Compel

Motion to Compel

E-Discovery Issues: Discovery Order, Motion to Compel
E-discovery Tags: Email, Relevancy
E-discovery subjects: Social Media

Centennial v. ServisFirst Bank

Case Date: 02/20/2021
Citation: 2021 WL 662229; 2021 U.S. Dist. LEXIS 31713
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Christopher P. Tuite
Rule(s): Rule 37(b), Rule 37(e). M.D. Fla. R. 3.01(g);
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Discovery Order, ESI Protocol, Motion for Sanctions, Motion for Spoliation, Production Request
E-discovery Tags: Communication/Cooperation, Cooperation, Costs, Data Recovery, Data Retention, Email, Forensic Analysis/Examination, Metadata, Mirror Imaging, Preservation and Collection, Privacy, Privilege, Records Retention Policies, Sanctions
E-discovery subjects: Computer, Electronically stored information, Email, Hard drive, Phone records, Software

Reed v. Royal Caribbean Cruises, Ltd.

Case Date: 02/11/2021
Citation: 2021 WL 515624; 2021 U.S. Dist. LEXIS 26209
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: John J. O'Sullivan
Rule(s): Rule 37(e)
Issues:

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.

Resolution:

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.

Relevant Documents:

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

E-Discovery Issues: Discovery Order, ESI Protocol, Motion for Sanctions, Motion for Spoliation, Preservation, Production Request
E-discovery Tags: Costs, Preservation and Collection, Spoliation
E-discovery subjects: Electronically stored information

Crossman v. Carrington Mortgage Services, LLC

Case Date: 05/04/2020
Citation: 2020 WL 2114639; 2020 U.S. Dist. LEXIS 77940
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Patricia D. Barksdale
Rule(s): Fed. R. Civ. P. 1; Fed. R. Civ. P.26(b)(2)(B); Fed. R. Civ. P. 26(c); Fed. R. Civ. P. 34(b)(2)(B); Fed. R. Civ. P. 37(a)(5)(A)
Issues:
Plaintiff sought back and front pay, compensatory and punitive damages, and attorney’s fees and costs for claims of emotional distress, mental anguish, loss of enjoyment of life, and inconvenience.
Defendant moved to compel plaintiff to respond to requests for production of plaintiff’s Facebook and Instagram accounts and any online information plaintiff provided or to which plaintiff contributed that refers to defendant, the allegations, plaintiff”s mental state, and events “that could reasonably be expected to produce significant emotion, feeling, or mental state.”
Plaintiff originally raised the same objections for all the requests: “This request is overly broad, invasive, and not reasonably calculated to lead to the discovery of admissible evidence.”

Plaintiff then supplemented her objections, stating first that she has no documents responsive to the request for production of online information she provided or to which she contributed that refers to the defendant or the complaint allegations.

Plaintiff then supplemented her objection to the requests of her Facebook and Instagram accounts by stating that

“[t]he request for full download of [her] social media profile will result [in] the production of several items that have no relevance, no materiality, and no bearing on any issue presented in this lawsuit.”
Finally, plaintiff supplemented her objection to the defendant’s requests for production of other online communications by stating that “the requests [were] “far too nebulous and ambiguous [of a] description for [her] to comply with th[ese] request[s].”
Resolution:

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.

On  the issue of relevancy, Magistrate Judge Barksdale found that the information in the plaintiff’s social media, including her Facebook and Instagram accounts, relates to her contemporaneous mental and emotional states and therefore relates to the injuries she claims she suffered at the hands of the defendant, including loss of enjoyment of life.
On the issue of privacy, Magistrate Judge Barksdale found that the plaintiff “ceded some by sharing her personal information with others on social media and by bringing this lawsuit subject to the public right of access.” Magistrate Judge Barksdale then held that, “[t]o the extent she has not, a confidentiality agreement suffices to protect her interests, and the obligations of members of the Court’s bar suffices to deter misuse of the information.
On the issue of vagueness, Magistrate Judge Barksdale found that plaintiff’s counsel “can ‘reasonably and naturally’ interpret the requests in view of the claims and defenses and through communication with opposing counsel to provide the information obviously sought.”
In closing, Magistrate Judge Barksdale granted the defendant’s motion to compel, directed the parties to expeditiously confer about an appropriate confidentiality agreement, and ordered the plaintiff to respond fully to requests for production.
Relevant Documents:

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

E-Discovery Issues: Confidentiality Agreement, Discovery Order, Motion to Compel, Production Request
E-discovery Tags: Communication/Cooperation, Cooperation, Privacy, Relevancy, Vagueness
E-discovery subjects: Electronically stored information, Internet usage, Social Media

Lincoln Memorial Academy et al. v. State of Florida, et al.

Case Date: 02/19/2021
Citation: 2020 U.S. Dist. LEXIS 237332 (M.D. Fla)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Amanda Arnold Sansone
Rule(s): Fed. R. Civ. P. 26 and 37
Issues:
The issue raised on appeal was whether the School Board’s Motion to Compel and Motion for Sanctions were legally sufficient and made in good faith.
The background facts are as follows:
On August 28, 2020, after multiple extensions and attempts to obtain complete discovery responses from the plaintiffs, the School Board moved to compel production of the outstanding discovery responses. On September 8, 2020, the court directed the plaintiffs to produce all remaining discovery responses and documents by September 23, 2020.
After a videoconference, the court ordered the plaintiffs to address their discovery deficiencies by October 23, 2020. After Attorney Ford failed to comply with the court’s discovery order, Attorney Jackson sent Attorney Ford a letter noting the plaintiffs mostly had not complied with the court’s order and detailing the discovery deficiencies for each plaintiff.
On October 29, 2020, the School Board moved for sanctions against the plaintiffs and Attorney Ford. After the second discovery conference, Attorney Ford assured the School Board he would provide amended responses for each plaintiff and correct the discovery deficiencies. Attorney Ford failed to do so. After an evidentiary hearing, the court granted the School Board’s motion for sanctions and awarded the School Board its reasonable attorney’s fees and costs against Attorney Ford for the unnecessary time and expenses it incurred because of the discovery violations.
Resolution:

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.

Relevant Documents:

Motion for Sanctions

Order Granting Motion for Sanctions

Plaintiffs’ Response to Defendant’s Motion for Sanctions

E-Discovery Issues: Discovery Order, Motion for Sanctions, Motion to Compel
E-discovery Tags: Sanctions
E-discovery subjects: Electronically stored information

Measured Wealth Private Client Group, LLC v. Foster, et al.

Case Date: 03/31/2021
Citation: 2021 WL 1215218 (S.D. Fla. Mar 31, 2021)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: William Matthewman
Rule(s): Rule 26(b)(1)
Issues:

The discovery issue is whether Plaintiff should be permitted to conduct a forensic examination of Defendant’s mobile phone to recover certain text messages and iMessages from the period of January 1, 2019 through December 31, 2019.

In response, Defendant asserted that the temporal scope is too broad and would result in the production of irrelevant text messages and iMessages, that the discovery sought could be obtained from other individuals, and that Plaintiff’s request for a forensic examination of her mobile phone for such a long time period is a mere fishing expedition. Defendant expressed concern that the examination could uncover personal and private information unrelated to Plaintiff’s claims.

Resolution:

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

First, despite Defendant’s argument to the contrary, Plaintiff properly propounded written discovery requests seeking certain text messages and iMessages from the time period of January 1, 2019 through December 31, 2019. Additionally, the Court provided the parties with the opportunity to confer about the most recent requests for production propounded by Plaintiff and waited until the responses to the most recent requests for production were due before issuing this Order.

Second, text messages and iMessages responsive to Plaintiff’s discovery requests from the period of January 1, 2019 through December 31, 2019, are relevant and proportional to the claims and defenses in this case, per Fed.R.Civ.P. 26(b)(1).

Third, Defendant currently possesses the same phone she possessed and utilized back in 2019 during the relevant time period. The Court wants to put an end to this discovery dispute and finds that a forensic examination, with necessary safeguards to protect Defendant’s privacy, is the best way to accomplish that task.

Fourth, Defendant appears to have been obstructionist with regard to her production of text messages and iMessages during the discovery process.

Fifth, in light of the sealed filings, the Court finds that Plaintiff is not engaging in an improper fishing expedition in seeking the text messages and iMessages. Rather, Plaintiff has made a legitimate discovery request based on the production that Defendant has completed to date.

Relevant Documents:

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

E-Discovery Issues: Motion for Forensic Inspection
E-discovery Tags: Forensic Analysis/Examination, Privacy, Proportionality, Relevancy
E-discovery subjects: Cell phone, Text message

Smith v. Forest River, Inc.

Case Date: 04/03/2020
Citation: 2020 U.S. Dist. LEXIS 58981
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Shaneik M. Maynard
Rule(s): Rule 37(c)(1)(A)
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion for Reconsideration, Motion for Sanctions, Production Request
E-discovery Tags: Sanctions, Search, Sources of ESI
E-discovery subjects: Database

In Re: 3M Combat Arms Earplug Products Liability Litig.

Case Date: 03/20/2020
Citation: 2020 U.S. Dist. LEXIS 48461; 2020 WL 1321522 (N.D. Fla. Mar. 20, 2020)
Court Type: Federal District
Court: Northern District of Florida (N.D. Fla.)
Judge: Federal Magistrate Judge: Gary R. Jones
Rule(s): Rule 26(b)(5)(A); Fed. R. Evid. 501
Issues:

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.

Resolution:

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.

Relevant Documents:

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

Order (Doc. 1048)

E-Discovery Issues: Motion to Compel
E-discovery Tags: Attorney-Client, Communication/Cooperation, Email, Privilege, Work Product
E-discovery subjects: Email

United States v. Caswell

Case Date: 09/17/2019
Court Type: Federal District
Court: 11th Circuit Court of Appeals (11th Cir.)
Judge: Circuit Judge: Per Curiam
Rule(s): 4th Amendment
Issues:

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

Resolution:

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.

Relevant Documents:

Opinion

E-Discovery Issues: Motion to Suppress
E-discovery subjects: Computer, Network Investigative Technique (NIT)

Bailey Indus. v. CLJP, Inc.

Case Date: 09/30/2010
Citation: Bailey Indus. v. CLJP, Inc., 270 F.R.D. 662
Court Type: Federal District
Court: Northern District of Florida (N.D. Fla.)
Judge: Federal Magistrate Judge: Elizabeth M. Timothy
Rule(s): Rule 45
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Discovery Order, Motion to Compel
E-discovery Tags: Communication/Cooperation, Email, Keyword Search
E-discovery subjects: Email

Ramos v. Hopele of Fort Lauderdale, LLC

Case Date: 03/19/2018
Citation: 2018 U.S. Dist. LEXIS 44327
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Barry S. Seltzer
Rule(s): Rule 26(b)(1)
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion for Forensic Inspection, Motion to Compel
E-discovery Tags: Data Recovery, Forensic Analysis/Examination, Metadata, Relevancy
E-discovery subjects: Cell phone, Text message

UnitedHealthcare of Fla., Inc. v. Am. Renal Assocs. LLC

Case Date: 10/20/2017
Citation: 2017 U.S. Dist. LEXIS 174454
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: William Matthewman
Rule(s): Federal Rules of Civil Procedure 1 and 26
Issues:

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.

Resolution:

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.

Relevant 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)

E-Discovery Issues: Motion for Reconsideration, Motion to Compel
E-discovery Tags: Keyword Search, Privilege
E-discovery subjects: Electronically stored information

Equal Employment Opportunity Commission v. M1 5100 Corp., d/b/a Jumbo Supermarket, Inc.

Case Date: 07/02/2020
Citation: 2020 U.S. Dist. LEXIS 117243
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: William Matthewman
Rule(s): Federal Rules of Civ. P. 26(g)(1) and 34
Issues:

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.

Resolution:

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.

Relevant Documents:

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

E-Discovery Issues: Discovery Order, Ethics, Motion for Sanctions, Motion to Compel
E-discovery Tags: Forensic Analysis/Examination, Keyword Search, Privacy, Sanctions
E-discovery subjects: Electronically stored information

In re 3M Combat Arms Earplug Prods. Liab. Litig.

Case Date: 06/11/2020
Citation: 2020 WL 3100016
Court Type: Federal District
Court: Northern District of Florida (N.D. Fla.)
Judge: Federal Magistrate Judge: Gary R. Jones
Rule(s): Federal Rules of Civil Procedure 26(c) and 37(a)
Issues:

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.

Resolution:

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.”

Relevant Documents:

Order Regarding Discovery Disputes

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

E-Discovery Issues: Motion to Compel, Production Request
E-discovery Tags: Custodian, Relevancy
E-discovery subjects: Computer, Email

United States v. Bouknight

Case Date: 06/15/2020
Citation: 2020 U.S. Dist. LEXIS 104478
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Marcia Morales Howard
Rule(s): Rule 59, Fed. R. Crim. Pro.
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion to Suppress
E-discovery Tags: Real Time Cell Phone Information
E-discovery subjects: Cell phone, Electronically stored information, Text message

Klayman v. City Pages

Case Date: 10/22/2014
Citation: 2014 U.S. Dist. LEXIS 150253; 2014 WL 5426515
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Philip R. Lammens
Rule(s): Federal Rule of Civil Procedure 26; Middle District of Florida Local Rule 3.04(b)
Issues:

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.

Resolution:

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)

Relevant Documents:

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)

E-Discovery Issues: Motion for Forensic Inspection, Motion to Compel, Production Request
E-discovery Tags: Forensic Analysis/Examination, Relevancy
E-discovery subjects: Computer, Electronically stored information

Valdes v. Greater Naples Fire Rescue Dist.

Case Date: 09/07/2018
Citation: 2018 U.S. Dist. LEXIS 152744; 2018 WL 4281472
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Carol Mirando
Rule(s): Rule 26(b); Rule 34
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion for Forensic Inspection, Motion to Compel, Production Request
E-discovery Tags: Email, Proportionality, Sanctions, Spoliation
E-discovery subjects: Cell phone, Electronically stored information, Email, Social Media, Text message

Chi Nguyen v. Costco:

Case Date: 01/27/2020
Citation: 2020 WL 413898
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: William Matthewman
Rule(s): Rule 37(e)
Issues:

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.

Resolution:

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.

Relevant Documents:

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]

E-Discovery Issues: Motion for Sanctions, Motion for Spoliation
E-discovery Tags: Spoliation
E-discovery subjects: Surveillance Footage, Video

HealthPlan Services v. Dixit

Case Date: 12/19/2019
Citation: 2019 U.S. Dist. LEXIS 218063; 2019 WL 6910139
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Amanda Sansone
Rule(s): Fed. R. Civ. P. 26(b); Federal R. Civ. P. 34(a); Fed. R. Civ. P. 37(b)(2)(C)
Issues:

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.

Resolution:

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.

Relevant Documents:

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]

E-Discovery Issues: Contempt of Court, Motion for Forensic Inspection, Motion for Sanctions, Motion to Compel
E-discovery Tags: Forensic Analysis/Examination, Form of Production, Metadata
E-discovery subjects: Computer, Hard drive

United States v. Taylor

Case Date: 08/28/2019
Citation: 935 F.3d 1279
Court Type: Federal District
Court: 11th Circuit Court of Appeals (11th Cir.)
Judge: Judge: Kevin Newsom
Rule(s): Fed R. Crim. P. 41
Issues:

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.

Resolution:

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.

Relevant Documents:

Supplemental Appellant’s Letter Brief

Opinion

E-Discovery Issues: Motion to Suppress
E-discovery Tags: Forensic Analysis/Examination
E-discovery subjects: Computer, IP Address, Software

Incardone v. Royal Carribean Cruises, Ltd.

Case Date: 08/12/2019
Citation: 2019 U.S. Dist. LEXIS 135333; 2019 WL 3779194
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Jonathan Goodman
Rule(s): Rule 37(e)
Issues:

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.”

Resolution:

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.

Relevant Documents:

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]

E-Discovery Issues: Motion for Spoliation
E-discovery Tags: Preservation and Collection, Proportionality, Spoliation
E-discovery subjects: Electronically stored information, Surveillance Footage, Video

Keim v. ADF Midatlantic, LLC

Case Date: 05/30/2019
Citation: 2019 U.S. Dist. LEXIS 90195; 2019 WL 2298787
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: William Matthewman
Rule(s): Rule 26
Issues:

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.

Resolution:

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.

Relevant Documents:

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

E-Discovery Issues: Discovery Order, Motion to Compel, Third Party Subpoena
E-discovery Tags: Communication/Cooperation, Email, Non-Party Discovery
E-discovery subjects: Email

Title Capital Mgmt., LLC v. Progress Residential, LLC

Case Date: 09/29/2017
Citation: 2017 U.S. Dist. LEXIS 218624;
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Edwin G. Torres
Rule(s): Rule 37(e)
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion for Sanctions, Motion for Spoliation, Motion to Dismiss
E-discovery Tags: Email, Sanctions, Spoliation
E-discovery subjects: Computer, Electronically stored information, Email

Scott v. Eglin Fed. Credit Union

Case Date: 04/13/2017
Citation: 2017 U.S. Dist. LEXIS 57034
Court Type: Federal District
Court: Northern District of Florida (N.D. Fla.)
Judge: Federal Magistrate Judge: Gary R. Jones
Rule(s): Federal Rules of Civil Procedure 26(b)(1) and 26(c)(1)
Issues:

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.

Resolution:

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.

Relevant Documents:

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

E-Discovery Issues: Discovery Order, Motion for Protective Order, Motion to Quash
E-discovery Tags: Proportionality, Relevancy
E-discovery subjects: Email, Text message

Heath v. Terrell County School District

Case Date: 05/12/2020
Citation: 2020 U.S. App. LEXIS 15070
Court Type: Federal Circuit Court
Court: 11th Circuit Court of Appeals (11th Cir.)
Judge: Circuit Judge: William Pryor, Jill Pryor, Peter Fay
Rule(s): Federal Rules of Civil Procedure 41(b) and 34
Issues:

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.

Resolution:

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.

Relevant Documents:

 

 

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

E-Discovery Issues: Discovery Order, Motion to Dismiss, Production Request
E-discovery Tags: Data Retention, Sanctions
E-discovery subjects: Cell phone, Electronically stored information

Bush v. State of Florida

Case Date: 05/14/2020
Citation: 45 Fla. L. Weekly Fed. S 145
Court Type: Florida State Court
Court: Florida Supreme Court (Fla.)
Judge: Justice: Per Curiam
Issues:

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.

Resolution:

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.

Relevant Documents:

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

E-Discovery Issues: Admissibility
E-discovery Tags: Data Recovery, Forensic Analysis/Examination
E-discovery subjects: Computer, Hard drive

Artt v. Orange Lake Country Club Realty, Inc.

Case Date: 08/17/2015
Citation: 2015 U.S. Dist. LEXIS 108104
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Thomas B. Smith
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Production Request
E-discovery Tags: Communication/Cooperation, Email
E-discovery subjects: Cell phone, Computer, Electronically stored information, Email, Social Media

Dang v. Eslinger,

Case Date: 01/20/2015
Citation: 2015 U.S. Dist. LEXIS 193969
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Thomas B. Smith
Rule(s): Rule 34
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion for Protective Order, Protective Order
E-discovery Tags: Privacy
E-discovery subjects: Surveillance Footage, Video

Yellow Pages Photos, Inc. v. Yellow Book USA, Inc.

Case Date: 02/10/2009
Citation: 2009 U.S. Dist. LEXIS 141401
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Elizabeth A. Jenkins
Rule(s): Rule 26; Rule 34
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion to Compel
E-discovery Tags: Forensic Analysis/Examination
E-discovery subjects: Database, Electronically stored information

Douglas v. Kohl’s Dep’t Stores

Case Date: 04/25/2016
Citation: 2016 U.S. Dist. LEXIS 54782
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Thomas Smith
Rule(s): Rule 34
Issues:

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).

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion to Compel
E-discovery Tags: Communication/Cooperation, Email, Privilege, Work Product
E-discovery subjects: Email

L-3 Communs. Corp. v. Sparton Corp.

Case Date: 02/12/2015
Citation: 313 F.R.D. 661
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Thomas Smith
Rule(s): Rule 26
Issues:

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”.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Discovery Order, Motion to Compel
E-discovery Tags: Keyword Search
E-discovery subjects: Electronically stored information

Indep. Mktg. Group v. Keen

Case Date: 01/24/2012
Citation: 2012 U.S. Dist. LEXIS 7702
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Monte Richardson
Rule(s): Rule 34; Rule 37
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion for Sanctions, Motion to Compel
E-discovery Tags: Costs, Form of Production, Sanctions, Third Party, Vendor
E-discovery subjects: Electronically stored information

Parker v. TaxPrep1, Inc.

Case Date: 07/27/2015
Citation: 2015 U.S. Dist. LEXIS 193833
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Phillip Lammens
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion for Sanctions, Motion for Spoliation
E-discovery Tags: Sanctions, Spoliation
E-discovery subjects: Computer, Electronically stored information, Email, Hard drive

United States v. Lewis

Case Date: 05/06/2019
Citation: 2019 U.S. Dist. LEXIS 103397
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Phillip Lammens
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion to Suppress
E-discovery Tags: Privacy, Third Party
E-discovery subjects: Cell phone, Computer, Electronically stored information, Hard drive

Vacation Club Servs. v. Rodriguez

Case Date: 04/14/2011
Citation: 2011 U.S. Dist. LEXIS 166007
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Gregory J. Kelly
Rule(s): Rule 37
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion for Sanctions, Motion for Spoliation, Motion to Compel
E-discovery Tags: Communication/Cooperation, Data Recovery, Forensic Analysis/Examination, Preservation and Collection, Spoliation
E-discovery subjects: Electronically stored information, Hard drive

Absolute Activist Value Master Fund v. Devine

Case Date: 08/01/2019
Citation: 2019 U.S. Dist. LEXIS 128263
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: John E. Steele
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion to Review Costs
E-discovery Tags: Costs
E-discovery subjects: Database, Electronically stored information

United States ex rel. King v. Dse, Inc.

Case Date: 01/17/2013
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Elizabeth A. Jenkins
Rule(s): Rule 37
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion for Sanctions, Motion for Spoliation, Motion to Dismiss
E-discovery Tags: Data Recovery, Data Retention, Sanctions
E-discovery subjects: Electronically stored information, Hard drive, Video

Pac. Coast Marine Windshields Ltd. v. Malibu Boats, LLC

Case Date: 11/30/2012
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: David A. Baker
Rule(s): Rule 37
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion for Sanctions, Motion for Settlement
E-discovery Tags: Forensic Analysis/Examination, Sanctions, Spoliation
E-discovery subjects: Computer, Electronically stored information, Hard drive

Skydive Space Ctr., Inc. v. Pohjolainen

Court Type: Florida State Court
Court: Fla. 5th DCA
Judge: Federal Magistrate Judge: Per Curiam
Issues:

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.

Resolution:

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.

Relevant Documents:

Appellant’s Reply Brief

Appellee’s Answer Brief

Initial Brief on Merits

E-Discovery Issues: Motion for Summary Judgment, Motion to Compel
E-discovery Tags: Email
E-discovery subjects: Email, Hard drive

United States v. Hill

Case Date: 07/06/2019
Citation: 2019 U.S. Dist. LEXIS 112145
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: Paul G. Bryon
Rule(s): 4th Amendment
Issues:

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

Resolution:

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.

Relevant Documents:

Plaintiff’ Motion to Supress Evidence (Doc. 35)

Reponse to Motion to Supress Evidence (Doc. 42)

Order on Motion to Supress (Doc. 51)

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Forensic Analysis/Examination, Privacy
E-discovery subjects: Computer, Hard drive

Morales v. State

Case Date: 06/20/2019
Citation: 2019 WL 2528912
Court Type: District Court of Appeal
Court: Fla. 1st DCA
Judge: Judge: Harvey L. Jay III
Rule(s): 4th Amendment
Issues:

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.

Resolution:

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.

Relevant Documents:

Plaintiff’ Motion to Supress Evidence (Doc. 35)

Reponse to Motion to Supress Evidence (Doc. 42)

Order on Motion to Supress (Doc. 51)

E-Discovery Issues: Admissibility, Motion to Dismiss
E-discovery Tags: Forensic Analysis/Examination, Hash Value, Privacy, Sources of ESI
E-discovery subjects: Computer, Electronically stored information, Photographs

Distefano v. Hampton Golf

Case Date: 08/05/2019
Citation: 2019 U.S. Dist. LEXIS 142050
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Mac R. McCoy
Issues:

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.

Resolution:

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.

Relevant Documents:

Joint Motion for Approval of Settlement

Report and Recommendation

Opinion and Order

E-discovery Tags: Costs, Vendor
E-discovery subjects: Electronically stored information

Shir Law Group, P.A. v. Carnevale

Case Date: 08/21/2019
Citation: 271 So. 3rd 152
Court Type: District Court of Appeal
Court: Fla. 3d DCA
Judge: Judge: Eric Hendon
Issues:

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.

Resolution:

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.

Relevant Documents:

SLG – Petition For Writ of Certiorari

Carnevale – Response to Petition

E-Discovery Issues: Discovery Order, Motion to Compel
E-discovery Tags: Boolean Search, Cooperation, Forensic Analysis/Examination, Keyword Search
E-discovery subjects: Computer, Email, Hard drive

United States v. Garcia

Case Date: 07/09/2019
Citation: 2019 WL 2950209 (11th Cir. 2019)
Court Type: Federal Circuit Court
Court: 11th Circuit Court of Appeals (11th Cir.)
Judge: Federal Magistrate Judge: Beverley B. Martin
Rule(s): Federal Rules of Criminal Procedure Rule 16
Issues:

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.

Resolution:

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.

Relevant Documents:

Opinion

E-Discovery Issues: Admissibility
E-discovery Tags: Communication/Cooperation
E-discovery subjects: Social Media, Text message

Sosa v. Carnival Corp.

Case Date: 12/04/2019
Citation: Sosa v. Carnival Corp., No. 18-20957-CIV, 2018 U.S. Dist. LEXIS 204933 (S.D. Fla. Dec. 4, 2018); 2019 WL 330865
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Jonathan Goodman
Rule(s): Rule 37
Issues:

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.

Resolution:

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.

Relevant Documents:

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

E-Discovery Issues: Jury Trial, Motion for Sanctions, Motion for Spoliation, Preservation
E-discovery Tags: Data Recovery, Data Retention, Preservation and Collection, Sanctions, Spoliation
E-discovery subjects: Video

Sosa v. Carnival Corp.

Case Date: 01/25/2019
Citation: 2019 U.S. Dist. LEXIS 12283
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Jonathan Goodman
Rule(s): Rule 37
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion for Sanctions, Motion for Spoliation
E-discovery Tags: Data Recovery, Spoliation
E-discovery subjects: Hard drive, Surveillance Footage, Video

Edwards v. State

Case Date: 06/26/2019
Citation: 2019 Fla. App. LEXIS 10021
Court Type: District Court of Appeal
Court: Fla. 3d DCA
Judge: Judge: Kevin Emas
Rule(s): 4th Amendment
Issues:

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.

Resolution:

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.

Relevant Documents:

Appellant’s Reply Brief

Appellee’s Answer Brief

Initial Brief on Merits

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Forensic Analysis/Examination, Privacy
E-discovery subjects: Computer, Electronically stored information, Removable Drive

Rogers v. Sec’y, Dep’t of Corr.

Case Date: 06/27/2019
Citation: 2019 U.S. Dist. LEXIS 107788
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: Virginia M. Hernandez Covington
Rule(s): 28 U.S.C. § 2254(a); 28 U.S.C. § 2254(d)
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Admissibility, Verdict Appeal
E-discovery Tags: Possession or Control, Privacy, Third Party
E-discovery subjects: Photographs

Romero v. Regions Fin. Corp./Regions Bank

Case Date: 07/03/2019
Citation: 2019 U.S. Dist. LEXIS 110973
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Edwin G. Torres
Rule(s): Rule 37
Issues:

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.

Resolution:

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).

Relevant Documents:

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)

E-Discovery Issues: Motion for Sanctions, Motion for Spoliation, Preservation
E-discovery Tags: Preservation and Collection, Sanctions, Spoliation
E-discovery subjects: Surveillance Footage, Video

McBride v. Coca-Cola Refreshments, USA, Inc.

Case Date: 06/20/2012
Citation: 2012 U.S. Dist. LEXIS 196775
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Anthony E. Porcelli
Rule(s): Rule 37(a); Rule 37(e)
Issues:

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

Resolution:

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.

Relevant Documents:

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

E-Discovery Issues: Litigation Hold, Motion for Sanctions, Motion for Spoliation, Motion to Compel, Preservation
E-discovery Tags: Data Retention, Preservation and Collection
E-discovery subjects: Electronically stored information

Shamrock-Shamrock, Inc. v. Tracey Remark

Case Date: 04/26/2019
Citation: 2019 WL 1868175
Court Type: District Court of Appeal
Court: Fla. 5th DCA
Judge: Judge: Opinon by Judge Michael S. Orfinger, Judges Cohen and Eisnaugle concurring
Rule(s): Fla. R. Civ. P. 1.410(c); Fla. R. Civ. P. 1.410(f)
Issues:

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.

Resolution:

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.”

Relevant Documents:

Appellant’s Initial Brief

Appellee’s Answer Brief

Appellant’s Reply Brief

Opinion

E-Discovery Issues: Preservation, Third Party Subpoena
E-discovery Tags: Data Retention, Preservation and Collection, Sanctions, Spoliation, Third Party
E-discovery subjects: Computer

Adacel, Inc. v. Adsync Techs., Inc.,

Case Date: 03/28/2019
Citation: 2019 U.S. Dist. LEXIS 52366
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Thomas B. Smith
Rule(s): Rule 26(f)
Issues:

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.”

Resolution:

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.

Relevant Documents:

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

E-Discovery Issues: Discovery Order, Motion to Compel
E-discovery Tags: Case Management Order (CMO), Sedona Conference

Clark v. FDS Bank

Case Date: 11/07/2018
Citation: 2018 U.S. Dist. LEXIS 190518
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Thomas B. Smith
Rule(s): Rule 26(f)
Issues:

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.”

Resolution:

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

Relevant Documents:

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

E-Discovery Issues: Discovery Order, Motion to Compel
E-discovery Tags: Communication/Cooperation, Costs, Forensic Analysis/Examination, Indexing, Mirror Imaging
E-discovery subjects: Database

In Re: Abilify (Aripiprazole) Products Liability Litigation

Case Date: 10/05/2018
Citation: 232 F. Supp. 3d 1342
Court Type: Federal District
Court: Northern District of Florida (N.D. Fla.)
Judge: Federal Magistrate Judge: Gary R. Jones
Rule(s): Rule 37(e)
Issues:

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.

Relevant Documents:

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,

E-Discovery Issues: Adverse Inference, Litigation Hold, Motion for Sanctions, Motion for Spoliation, Preservation
E-discovery Tags: Data Retention, Email, Sanctions, Spoliation
E-discovery subjects: Email

Smith v. Bank of America, N.A.

Case Date: 03/06/2014
Citation: 2014 WL 897032
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: John E. Steele
Rule(s): Rule 37
Issues:

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?

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Adverse Inference, Motion for Sanctions, Motion for Spoliation, Motion for Summary Judgment
E-discovery Tags: Custodian, Spoliation
E-discovery subjects: Computer

Alexsam, Inc. v. WildCard Sys.

Case Date: 02/13/2019
Citation: 2019 U.S. Dist. LEXIS 24347
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Alicia O. Valle
Rule(s): Federal Rule of Civil Procedure 54(d)(1)
Issues:

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

 

Resolution:

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.

Relevant Documents:

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)


Rimini St. v. Oracle United States

Case Date: 01/14/2019
Citation: 2019 U.S. Lexis 1733, No. 17-1625
Court Type: Federal Supreme Court
Court: U.S. Supreme Court
Judge: Justice: Brett Kavanaugh
Issues:

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?

Resolution:

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.

Relevant Documents:

Opening Brief for Appellant

Reply Brief for Petitioner

Answer Brief for Appellees 

E-Discovery Issues: Motion to Review Costs
E-discovery Tags: Costs

Ranger Constr. Indust. v. Allied World Nat’l Assur. Co.

Case Date: 02/05/2019
Citation: 2019 U.S. Dist. LEXIS 18617
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: William Matthewman
Rule(s): Rule 26 (b)(5)(B) Fed. R. Civ. P. ; Rule 502 Fed. R. Evid.
Issues:

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?

Resolution:

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).

 

Relevant Documents:

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) 

E-Discovery Issues: Motion to Disqualify, Waiver of Privilege
E-discovery Tags: Bates Stamping, Clawback, Privilege
E-discovery subjects: Computer

Shire Dev. v. Mylan Pharms.

Case Date: 11/11/2018
Citation: 2018 U.S. Dist. LEXIS 205171
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Anthony E. Porcelli
Issues:

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?

Resolution:

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.

Relevant Documents:

Defendants Motion for Taxation of Costs [DI 552]

Plaintiffs Opposition to Defendants Motion [DI 553]

Report and Recommendation [DI 557]

E-discovery Tags: Costs
E-discovery subjects: Computer, Database, Software

Tillman v. Advanced Pub. Safety, Inc.

Case Date: 11/02/2018
Citation: 2018 U.S. Dist. LEXIS 187977
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: William Matthewman
Issues:

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?

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion to Review Costs
E-discovery Tags: Costs

Optowave Co. v. Nikitin

Case Date: 11/07/2006
Citation: 2006 U.S. Dist. LEXIS 81345
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: David. A. Baker
Rule(s): Rule 37
Issues:

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?

Resolution:

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

Relevant Documents:

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)

E-Discovery Issues: Adverse Inference, Motion for Default Judgment, Motion for Spoliation, Motion to Compel
E-discovery Tags: Email, Preservation and Collection, Spoliation
E-discovery subjects: Computer, Email

SPM Resorts, Inc. v. Diamond Resorts Management, Inc.

Case Date: 07/08/2011
Citation: 65 So.3d 146
Court Type: Florida State Court
Court: Fla. 5th DCA
Judge: Judge: Per Curium Opinion
Issues:

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.

Resolution:

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

Relevant Documents:

Decision

E-Discovery Issues: Discovery Order, Motion to Compel
E-discovery Tags: Costs, Data Recovery, Proportionality
E-discovery subjects: Computer, Database, Software

Garrett v. Univ. S. Fla. Bd. of Trs.

Case Date: 09/14/2018
Citation: 2018 U.S. Dist. LEXIS 156996
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Amanda Arnold Sansone
Rule(s): Rule 37
Issues:

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)?

Resolution:

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.

Relevant Documents:

Motion to Compel Discovery (Doc. 49)

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

Order on Motion to Compel (Doc. 57)

E-Discovery Issues: Motion for Sanctions, Motion to Compel
E-discovery Tags: Costs, Forensic Analysis/Examination
E-discovery subjects: Cell phone, Text message

Carpenter v. United States

Case Date: 06/22/2018
Citation: Carpenter v. United States, 138 S. Ct. 2206 (2018)
Court Type: Federal Supreme Court
Court: U.S. Supreme Court
Judge: Chief Justice (CJ): John G. Roberts
Rule(s): 4th Amendment
Issues:

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.

Resolution:

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.

Relevant Documents:

Brief for the United States

Reply Brief in Opposition

Opinion

E-Discovery Issues: Motion to Suppress
E-discovery Tags: Cell Site Location Information (CSLI), Preservation and Collection, Privacy, Real Time Cell Phone Information
E-discovery subjects: Cell phone, GPS Device, Pen register, Phone records

Local Access, LLC v. Peerless Network, Inc.

Case Date: 06/06/2018
Citation: 2018 WL 2938393
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Thomas B. Smith
Rule(s): Rule 26; Rule 34; Rule 37
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion for Sanctions, Motion to Compel
E-discovery Tags: Attorney-Client, Bates Stamping, Form of Production, Privilege, Sanctions, Work Product

In re Fundamental Long Term Care, Inc.

Case Date: 09/12/2014
Citation: 515 B.R. 874 (Bankr. M.D. Fla. 2014)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Bankruptcy Judge: Michael G. Williamson
Issues:

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

Resolution:

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.

Relevant 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)

E-Discovery Issues: Motion to Compel
E-discovery Tags: Attorney-Client, Clawback, Privilege
E-discovery subjects: Database, Email

In re EZ Pay Servs., Inc.

Case Date: 09/28/2007
Citation: In re EZ Pay Servs., Inc., (Bankr. M.D. Fla. 2007)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Bankruptcy Judge: Paul M. Glenn
Issues:

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.

Resolution:

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.

Relevant Documents:

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

 

E-Discovery Issues: Motion for Reconsideration
E-discovery Tags: Costs, Data Retention, Forensic Analysis/Examination, Sources of ESI
E-discovery subjects: Computer, Hard drive

In re Disposable Contact Lens Antitrust Litig.

Case Date: 11/01/2016
Citation: In re Disposable Contact Lens Antitrust Litig., Case No. 3:15–md–2626–J–20JRK, 2016 WL 6518660 (M.D. Fla. Nov. 1, 2016)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: James R. Klindt
Rule(s): Rule 26
Issues:

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.

Resolution:

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.

Relevant Documents:

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) 

 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Custodian, Keyword Search, Proportionality, Vendor
E-discovery subjects: Email

In re Atl. Int’l Mortg. Co.

Case Date: 08/02/2006
Citation: In re Atl. Int'l Mortg. Co., 352 B.R. 503 (Bankr. M.D. Fla. 2006)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Bankruptcy Judge: Alexander L. Paskay
Rule(s): Rule 37
Issues:

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

Resolution:

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.

E-Discovery Issues: Motion for Default Judgment, Motion for Sanctions
E-discovery Tags: Communication/Cooperation, Costs, Data Retention, Forensic Analysis/Examination, Keyword Search, Preservation and Collection, Privilege, Sanctions
E-discovery subjects: Backup Tapes, Computer, Email, Servers

Horowitch v. Diamond Aircraft Indus., Inc.

Case Date: 04/23/2007
Citation: Horowitch v. Diamond Aircraft Indus., Inc., No. 6:06-CV-1703-Orl-19JGG, 2007 WL 1192401 (M.D. Fla. Apr. 23, 2007)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: James G. Glazebrook
Rule(s): Rule 26; Rule 33; Rule 34
Issues:

Plaintiff moved to compel documents and further answers to interrogatories.

Resolution:

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.

Relevant Documents:

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) 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Attorney-Client, Communication/Cooperation, Possession or Control, Privilege, Relevancy, Work Product

Costa v. Metro. Life Ins. Co.

Case Date: 04/05/2018
Citation: Costa v. Metro. Life Ins. Co., Case No: 6:17-cv-714-Orl-40TBS, 2018 U.S. Dist. LEXIS 58110 (M.D. Fla. Apr. 5, 2018)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Thomas B. Smith
Rule(s): Rule 26; Rule 45
Issues:

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.

Resolution:

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.

Relevant Documents:

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) 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Attorney-Client, Non-Party Discovery, Possession or Control, Privilege, Proportionality, Relevancy, Work Product

Health Mgmt. Assocs., Inc. v. Salyer

Case Date: 08/19/2015
Citation: Health Mgmt. Assocs., Inc. v. Salyer, CASE NO. 14-14337-CIV-ROSENBERG/LYNCH, 2015 WL 12778793 (S.D. Fla. Aug. 19, 2015)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Frank J. Lynch Jr.
Issues:

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

Resolution:

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.

Relevant Documents:

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) 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Communication/Cooperation, Forensic Analysis/Examination, Privacy, Relevancy, Sources of ESI
E-discovery subjects: Cell phone, Computer, Email, Removable Drive

Goodbys Creek, LLC v. Arch Ins. Co.

Case Date: 09/15/2008
Citation: Goodbys Creek, LLC v. Arch Ins. Co., No. 3:07-cv-947-J-34HTS, 2008 WL 4279693 (M.D. Fla. Sept. 15, 2008)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Howard T. Snyder
Rule(s): Rule 26; Rule 34
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion for Sanctions, Motion to Compel
E-discovery Tags: Form of Production, Preservation and Collection, Relevancy, Sanctions, TIFF Images

Floeter v. City of Orlando

Case Date: 02/09/2007
Citation: Floeter v. City of Orlando, No. 6:05-cv-400-Orl-22KRS, 2007 WL 486633 (M.D. Fla. Feb. 9, 2007)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Karla R. Spaulding
Issues:

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

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion for Sanctions
E-discovery Tags: Data Recovery, Data Retention, Email, Preservation and Collection, Sanctions, Spoliation
E-discovery subjects: Backup Tapes, Computer, Email, Hard drive

Floeter v. City of Orlando

Case Date: 04/14/2006
Citation: Floeter v. City of Orlando, No. 6:05-cv-400-Orl-22KRS, 2006 WL 1000306 (M.D. Fla. Apr. 14, 2006)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: Karla R. Spaulding
Rule(s): Rule 34
Issues:

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

Resolution:

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.

Relevant Documents:

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) 

 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Possession or Control, Privilege, Relevancy, Sources of ESI
E-discovery subjects: Computer, Email, Hard drive

Feig v. Apple Org., Inc.

Case Date: 05/29/2009
Citation: Feig v. Apple Org., Inc., No. 08-23358-CIV, 2009 WL 1515506 (S.D. Fla. May 29, 2009)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Andrea M. Simonton
Issues:

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.

Resolution:

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.

Relevant Documents:

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) 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Communication/Cooperation, Forensic Analysis/Examination, Keyword Search, Possession or Control, Preservation and Collection, Sources of ESI
E-discovery subjects: Email, Servers

E. Coast Brokers and Packers, Inc. v. Seminis Vegetable Seeds, Inc.

Case Date: 02/09/2009
Citation: E. Coast Brokers and Packers, Inc. v. Seminis Vegetable Seeds, Inc., No. 8:07–cv–171–T–26TBM, 2009 WL 361281 (M.D. Fla. Feb. 9, 2009)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: Richard A. Lazzara
Issues:

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

Resolution:

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.

Relevant Documents:

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)

 

E-Discovery Issues: Motion for Sanctions
E-discovery Tags: Data Retention, Sanctions, Spoliation
E-discovery subjects: Computer, Software

Coquina Invs. v. Rothstein

Case Date: 08/03/2012
Citation: Coquina Invs. v. Rothstein, No. 10–60786–Civ, 2012 WL 3202273 (S.D. Fla. Aug. 3, 2012)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal District Judge: Marcia G. Cooke
Rule(s): Rule 37
Issues:

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

Resolution:

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.

Relevant Documents:

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)

 

E-Discovery Issues: Motion for Sanctions
E-discovery Tags: Communication/Cooperation, Costs, Form of Production, Keyword Search, Metadata, Possession or Control, Preservation and Collection, Sanctions, TIFF Images, Vendor
E-discovery subjects: Database, Email, Hard drive, Spreadsheets

Cont’l Grp., Inc. v. KW Prop. Mgmt., LLC

Case Date: 02/20/2009
Citation: Cont'l Grp., Inc. v. KW Prop. Mgmt., LLC, No. 09-60202-CV, 2009 WL 425945 (S.D. Fla. Feb. 20, 2009)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal District Judge: James I. Cohn
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion to Compel
E-discovery Tags: Attorney-Client, Communication/Cooperation, Forensic Analysis/Examination, Keyword Search, Mirror Imaging, Privilege, Sources of ESI, Work Product
E-discovery subjects: Computer, Removable Drive, Servers

Cont’l Grp., Inc. v. KW Prop. Mgmt., LLC

Case Date: 04/22/2009
Citation: Cont'l Grp., Inc. v. KW Prop. Mgmt., LLC, 622 F. Supp. 2d 1357 (S.D. Fla. 2009)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal District Judge: James I. Cohn
Issues:

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.

Resolution:

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.

Relevant Documents:

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) 

 

 

E-Discovery Issues: Motion to Dismiss, Preliminary Injunction
E-discovery Tags: Forensic Analysis/Examination, Metadata, Possession or Control, Spoliation
E-discovery subjects: Computer, Email, Removable Drive, Servers, Spreadsheets

Chavannes v. Protective Life Ins. Co.

Case Date: 01/24/2006
Citation: Chavannes v. Protective Life Ins. Co., 232 F.R.D. 698 (S.D. Fla. 2006)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Barry L. Garber
Issues:

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.

Resolution:

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.

Relevant Documents:

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) 

 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Possession or Control, Preservation and Collection, Privilege, Work Product
E-discovery subjects: Photographs, Video

Channel Components, Inc. v. Am. II Elecs., Inc.

Case Date: 12/21/2005
Citation: Channel Components, Inc. v. Am. II Elecs., Inc., 915 So. 2d 1278 (Fla. 2d DCA 2005)
Court Type: Florida State Court
Court: Fla. 2d DCA
Judge: Judge: Chris W. Altenbernd
Rule(s): Fla. R. Civ. P. 1.380
Issues:

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

Resolution:

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.

Relevant Documents:

Decision

E-Discovery Issues: Discovery Order, Motion for Sanctions
E-discovery Tags: Communication/Cooperation, Costs, Sanctions
E-discovery subjects: Email, Software

Hendricks v. Smartvideo Techs., Inc.

Case Date: 01/26/2007
Citation: Hendricks v. Smartvideo Techs., Inc., 511 F. Supp. 2d 1219 (M.D. Fla. 2007)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Judge: Virginia M. Hernandez Covington
Rule(s): Rule 11, Rule 37, Rule 56
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion for Sanctions, Motion for Summary Judgment, Production Request
E-discovery Tags: Data Retention, Forensic Analysis/Examination, Form of Production, Possession or Control, Preservation and Collection, Sanctions
E-discovery subjects: Computer, Hard drive

U & I Corp. v. Advanced Med. Design, Inc.

Case Date: 03/26/2008
Citation: U & I Corp. v. Advanced Med. Design, Inc., 251 F.R.D. 667 (M.D. Fla. 2008)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Elizabeth A. Jenkins
Rule(s): Rule 26, Rule 34, Rule 37
Issues:

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.

Resolution:

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.

Relevant Documents:

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) 

E-Discovery Issues: Motion for Sanctions, Motion to Compel, Protective Order
E-discovery Tags: Costs, Data Recovery, Forensic Analysis/Examination, Form of Production, Non-Party Discovery, Possession or Control, Preservation and Collection, Relevancy, Sanctions
E-discovery subjects: Computer, Database, Email, Hard drive, Servers

Wynmoor Cmty. Council, Inc. v. QBE Ins. Corp.

Case Date: 03/05/2012
Citation: Wynmoor Cmty. Council, Inc. v. QBE Ins. Corp., 280 F.R.D. 681 (S.D. Fla. 2012)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Lurana S. Snow
Rule(s): Rule 26; Rule 34; Rule 37
Issues:

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

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion to Compel
E-discovery Tags: Costs, Data Backup, Data Recovery, Forensic Analysis/Examination, Keyword Search, Mirror Imaging, Preservation and Collection, Privilege, Sources of ESI
E-discovery subjects: Computer, Email, Hard drive, Servers

In re Seroquel Prods. Liab. Litig.

Case Date: 08/21/2007
Citation: In re Seroquel Prods. Liab. Litig., 244 F.R.D. 650 (M.D. Fla. 2007)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: David A. Baker
Rule(s): Rule 26; Rule 34; Rule 37
Issues:

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

Resolution:

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.

Relevant Documents:

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) 

 

E-Discovery Issues: Motion for Sanctions
E-discovery Tags: Bates Stamping, Case Management Order (CMO), Communication/Cooperation, Custodian, De-Duplication, Form of Production, Keyword Search, Metadata, Preservation and Collection, Sanctions, Sedona Conference, TIFF Images, Vendor
E-discovery subjects: Backup Tapes, Computer, Database, Email, Servers, Spreadsheets

Wandner v. Am. Airlines

Case Date: 01/12/2015
Citation: Wandner v. Am. Airlines, 79 F. Supp. 3d 1285 (S.D. Fla. 2015)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Jonathan Goodman
Issues:

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.

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Adverse Inference, Motion for Sanctions, Motion for Spoliation
E-discovery Tags: Data Retention, Possession or Control, Preservation and Collection, Sanctions, Spoliation
E-discovery subjects: Surveillance Footage

Felicia v. Celebrity Cruises, Inc.

Case Date: 11/09/2012
Citation: Felicia v. Celebrity Cruises, Inc., 286 F.R.D. 667 (S.D. Fla. 2012)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Lurana S. Snow
Rule(s): Rule 26; Rule 37
Issues:

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

Resolution:

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.

Relevant Documents:

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) 

 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Attorney-Client, Data Retention, Possession or Control, Preservation and Collection, Privilege, Relevancy, Work Product
E-discovery subjects: Database, Photographs, Surveillance Footage

United States v. Olmedo

Case Date: 04/28/2008
Citation: United States v. Olmedo, 552 F. Supp. 2d 1347 (S.D. Fla. 2008)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Edwin G. Torres
Rule(s): 4th Amendment
Issues:

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.

Resolution:

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.

Relevant Documents:

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

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Privacy, Real Time Cell Phone Information
E-discovery subjects: Cell phone, Pen register, Trap and trace device

United States v. Sylvin

Case Date: 10/02/2009
Citation: United States v. Sylvin, No. 09–CR–20264, 2009 WL 6412010 (S.D. Fla. Oct. 2, 2009)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Ted E. Bandstra
Issues:

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.

Resolution:

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.

Relevant Documents:

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) 

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Privacy, Real Time Cell Phone Information
E-discovery subjects: Cell phone, Pen register, Trap and trace device

United States v. Khanani

Case Date: 10/02/2007
Citation: United States v. Khanani, 502 F.3d 1281 (11th Cir. 2007)
Court Type: Federal Circuit Court
Court: 11th Circuit Court of Appeals (11th Cir.)
Judge: Circuit Judge: Stanley F. Birch Jr.
Rule(s): 4th Amendment
Issues:

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.

Resolution:

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.

Relevant Documents:

Initial Brief for Appellant

Brief of the United States (Criminal Case)

Reply and Cross Appeal Brief For Appellant 

Reply Brief of the United States

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Forensic Analysis/Examination, Keyword Search, Possession or Control, Privacy, Sources of ESI
E-discovery subjects: Computer, Hard drive

United States v. Whaley

Case Date: 02/16/2011
Citation: United States v. Whaley, 415 F. App'x 129 (11th Cir. 2011)
Court Type: Federal Circuit Court
Court: 11th Circuit Court of Appeals (11th Cir.)
Judge: Circuit Judge: Per Curiam
Rule(s): 4th Amendment
Issues:

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.

Resolution:

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.

Relevant Documents:

Initial Brief for Appellant

Brief for the United States

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Forensic Analysis/Examination, Mirror Imaging, Privacy, Sources of ESI
E-discovery subjects: Computer, Hard drive

Carpenter v. State

Case Date: 06/29/2017
Citation: Carpenter v. State, 228 So. 3d 535 (Fla. 2017)
Court Type: Florida State Court
Court: Florida Supreme Court (Fla.)
Judge: Justice: R. Fred Lewis
Rule(s): 4th Amendment
Issues:

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.

Resolution:

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.

Relevant Documents:

Opinion

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Forensic Analysis/Examination, Privacy, Sources of ESI
E-discovery subjects: Cell phone, Email, Phone records, Text message

United States v. Meister

Case Date: 01/02/2015
Citation: United States v. Meister, 596 F. App'x 790 (11th Cir. 2015) (per curiam)
Court Type: Federal Circuit Court
Court: 11th Circuit Court of Appeals (11th Cir.)
Judge: Circuit Judge: Per Curiam
Rule(s): 4th Amendment
Issues:

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

Resolution:

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.

Relevant Documents:

Brief of Appellant

Brief of the United States

Opinion

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Forensic Analysis/Examination, Privacy, Sources of ESI
E-discovery subjects: Computer, Hard drive

United States v. Miranda

Case Date: 05/06/2009
Citation: United States v. Miranda, 325 F. App'x 858 (11th Cir. 2009) (per curiam)
Court Type: Federal Circuit Court
Court: 11th Circuit Court of Appeals (11th Cir.)
Judge: Circuit Judge: Per Curiam
Rule(s): 4th Amendment
Issues:

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.

Resolution:

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.

Relevant Documents:

Opinion

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Forensic Analysis/Examination, Privacy, Sources of ESI
E-discovery subjects: Computer, Hard drive

Britton v. Wal-Mart Stores E., L.P.

Case Date: 06/08/2011
Citation: Britton v. Wal-Mart Stores E., L.P., Case No. 4:11cv32-RH/WCS, 2011 WL 3236189 (N.D. Fla. June 8, 2011)
Court Type: Federal District
Court: Northern District of Florida (N.D. Fla.)
Judge: Federal Magistrate Judge: William C. Sherrill Jr.
Issues:

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

Resolution:

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.

Relevant Documents:

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) 

E-Discovery Issues: Motion for Sanctions, Motion for Spoliation
E-discovery Tags: Data Retention, Preservation and Collection, Records Retention Policies, Sanctions, Spoliation
E-discovery subjects: Surveillance Footage

Calixto v. Watson Bowman Acme Corp.

Case Date: 11/16/2009
Citation: Calixto v. Watson Bowman Acme Corp., Case No. 07-60077-CIV-ZLOCH/ROSENBAUM, 2009 WL 3823390 (S.D. Fla. Nov. 16, 2009)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Robin S. Rosenbaum
Rule(s): Rule 26; Rule 30
Issues:

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.

Resolution:

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.

Relevant Documents:

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) 

 

E-Discovery Issues: Litigation Hold, Motion to Compel
E-discovery Tags: Costs, Data Recovery, Data Retention, Keyword Search, Preservation and Collection, Privilege, Sanctions, Spoliation
E-discovery subjects: Backup Tapes, Database, Email, Hard drive, Servers

Cableview Commc’ns of Jacksonville, Inc. v. Time Warner Cable Se., LLC

Case Date: 05/04/2015
Citation: Cableview Commc'ns of Jacksonville, Inc. v. Time Warner Cable Se., LLC, Case No. 3:13-cv-306-J-34JRK, 2015 WL 12838175 (M.D. Fla. May 4, 2015)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: James R. Klindt
Rule(s): Rule 26; Rule 34; Rule 37
Issues:

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

Resolution:

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.

Relevant Documents:

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)

 

 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Data Retention, Preservation and Collection, Privilege, Records Retention Policies, Relevancy, Sanctions, Spoliation, Work Product
E-discovery subjects: Email, Servers

Bratcher v. Navient Sols., Inc.

Case Date: 04/05/2017
Citation: Bratcher v. Navient Sols., Inc., 249 F. Supp. 3d 1283 (M.D. Fla. 2017)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Joel B. Toomey
Rule(s): Rule 26
Issues:

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

Resolution:

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.

Relevant Documents:

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) 

 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Possession or Control, Privacy, Relevancy, Sources of ESI
E-discovery subjects: Cell phone, Phone records

Biomet, Inc. v. Fleury

Case Date: 10/28/2005
Citation: Biomet, Inc. v. Fleury, 912 So. 2d 706 (Fla. 2d DCA 2005)
Court Type: Florida State Court
Court: Fla. 2d DCA
Judge: Judge: Darryl C. Casanueva
Issues:

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

Resolution:

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.

Relevant Documents:

Decision

E-Discovery Issues: Motion to Compel, Motion to Quash
E-discovery Tags: Costs, Form of Production, Indexing
E-discovery subjects: Computer, Database

Berryman-Dages v. City of Gainesville

Case Date: 07/20/2011
Citation: Berryman-Dages v. City of Gainesville, CASE NO. 1:10-cv-00177-MP-GRJ, 2011 WL 2938369 (N.D. Fla. July 20, 2011)
Court Type: Federal District
Court: Northern District of Florida (N.D. Fla.)
Judge: Federal District Judge: Maurice Mitchell Paul
Rule(s): Rule 45
Issues:

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

Resolution:

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.

Relevant Documents:

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) 

E-Discovery Issues: Motion to Quash
E-discovery Tags: Forensic Analysis/Examination, Metadata, Mirror Imaging, Non-Party Discovery, Preservation and Collection, Privacy, Privilege, Sources of ESI
E-discovery subjects: Computer, Hard drive

Bank of Mongolia v. M & P Glob. Fin. Servs., Inc.

Case Date: 04/24/2009
Citation: Bank of Mongolia v. M & P Glob. Fin. Servs., Inc., 258 F.R.D. 514 (S.D. Fla. 2009)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Robin S. Rosenbaum
Rule(s): Rule 26; Rule 34; Rule 37
Issues:

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.

Resolution:

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.

Relevant Documents:

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) 

 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Cost Shifting, Costs, Custodian, Forensic Analysis/Examination, Keyword Search, Mirror Imaging, Non-Party Discovery, Possession or Control, Privilege, Sanctions, Sources of ESI, Spoliation
E-discovery subjects: Computer, Hard drive

Balfour Beatty Rail, Inc. v. Vaccarello

Case Date: 01/18/2007
Citation: Balfour Beatty Rail, Inc. v. Vaccarello, Case No. 3:06-cv-551-J-20MCR, 2007 WL 169628 (M.D. Fla. Jan. 18, 2007)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Monte C. Richardson
Rule(s): Rule 34; Rule 37
Issues:

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

Resolution:

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.

Relevant Documents:

Motion to Compel (Doc. 33) 

Response to Motion to Compel (Doc. 36) 

Order on Motion to Compel (Doc. 37) 

 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Forensic Analysis/Examination, Preservation and Collection
E-discovery subjects: Computer, Hard drive

Hatfield v. AutoNation, Inc.

Case Date: 01/04/2006
Citation: Hatfield v. AutoNation, Inc., 939 So. 2d 155 (Fla. 4th DCA 2006)
Court Type: Florida State Court
Court: Fla. 4th DCA
Judge: Judge: Barry J. Stone
Issues:

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.

Resolution:

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.

Relevant Documents:

Decision

E-Discovery Issues: Temporary Restraining Order
E-discovery Tags: Forensic Analysis/Examination, Trade Secrets
E-discovery subjects: Computer, Email, Hard drive

Artt v. Orange Lake Country Club Realty, Inc.

Case Date: 08/17/2015
Citation: Artt v. Orange Lake Country Club Realty, Inc., Case No: 6:14-cv-956-Orl-40TBS, 2015 WL 4911086 (M.D. Fla. Aug. 17, 2015)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Thomas B. Smith
Rule(s): Rule 26
Issues:

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

Resolution:

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.

Relevant Documents:

Motion to Compel (Doc. 36) 

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

Order on Motion to Compel (Doc. 39) 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Preservation and Collection, Proportionality, Relevancy
E-discovery subjects: Social Media

Armor Screen Corp. v. Storm Catcher, Inc.

Case Date: 10/29/2008
Citation: Armor Screen Corp. v. Storm Catcher, Inc., Case No. 07-81091-Civ-Ryskamp/Vitunac, 2008 WL 4753358 (S.D. Fla. Oct. 29, 2008)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Ann E. Vitunac
Rule(s): Rule 26; Rule 34
Issues:

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

Resolution:

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.

Relevant Documents:

Motion to Compel (Doc. 93) 

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

Order on Motion to Compel (Doc. 144) 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Communication/Cooperation, Form of Production, Preservation and Collection, Vendor
E-discovery subjects: Software, Spreadsheets

Winn-Dixie Stores, Inc. v. Se. Milk, Inc.

Case Date: 10/10/2017
Citation: Winn-Dixie Stores, Inc. v. Se. Milk, Inc., NO. 3:15-CV-1143-J-39PDB, 2017 WL 4518599 (M.D. Fla. Oct. 10, 2017)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Patricia D. Barksdale
Rule(s): Rule 26; Rule 30
Issues:

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

Resolution:

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.

Relevant Documents:

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) 

 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Keyword Search, Possession or Control, Preservation and Collection, Privilege
E-discovery subjects: Computer, Email

Dig. Assurance Certification, LLC v. Pendolino

Case Date: 09/29/2017
Citation: Dig. Assurance Certification, LLC v. Pendolino, Case No: 6:17-cv-72-Orl-41TBS, 2017 WL 4342316 (M.D. Fla. Sept. 29, 2017)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Thomas B. Smith
Rule(s): Rule 26; Rule 45
Issues:

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

Resolution:

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.

Relevant Documents:

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) 

 

E-Discovery Issues: Motion to Compel, Motion to Quash
E-discovery Tags: Costs, De-Duplication, Forensic Analysis/Examination, Hash Value, Identical Copies, Indexing, Keyword Search, Non-Party Discovery, Possession or Control, Proportionality, Relevancy, Sedona Conference, Trade Secrets
E-discovery subjects: Computer, Database, Email, Hard drive, Internet usage, Removable Drive

L.T.T. v. Walt Disney Parks & Resorts US, Inc.

Case Date: 07/19/2017
Citation: L.T.T. v. Walt Disney Parks & Resorts US, Inc., Case No: 6:14-cv-1921-Orl-22GJK, 2017 WL 3065145 (M.D. Fla. July 19, 2017)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: Anne C. Conway
Rule(s): Rule 54
Issues:

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.

Resolution:

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.

Relevant Documents:

Motion to Review Costs (Doc. 84) 

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

Order on Motion to Review Costs (Doc. 92)

 

E-Discovery Issues: Motion to Review Costs
E-discovery Tags: Cost Shifting, Costs, Form of Production, Vendor
E-discovery subjects: Servers, Spreadsheets

D.M. v. Walt Disney Parks & Resorts US, Inc.

Case Date: 07/18/2017
Citation: D.M. v. Walt Disney Parks & Resorts US, Inc., Case No: 6:14-cv-1895-Orl-22GJK, 2017 WL 3034066 (M.D. Fla. July 18, 2017)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: Anne C. Conway
Rule(s): Rule 54
Issues:

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.

Resolution:

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.

Relevant Documents:

Motion to Review Costs (Doc. 86) 

Response in Opposition to Review Costs (Doc. 88)

Order on Motion to Review Costs (Doc. 94)

 

E-Discovery Issues: Motion to Review Costs
E-discovery Tags: Cost Shifting, Costs, Form of Production, Vendor
E-discovery subjects: Spreadsheets

Spiral Direct, Inc. v. Basic Sports Apparel, Inc.

Case Date: 10/27/2016
Citation: Spiral Direct, Inc. v. Basic Sports Apparel, Inc., Case No: 6:15-cv-641-Orl-28TBS, 2016 WL 6277025 (M.D. Fla. Oct. 27, 2016)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Thomas B. Smith
Rule(s): Rule 45
Issues:

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

Resolution:

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.”

Relevant Documents:

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)

 

E-Discovery Issues: Motion to Quash
E-discovery Tags: Communication/Cooperation, Custodian, Forensic Analysis/Examination, Form of Production, Non-Party Discovery, Privilege, Vendor
E-discovery subjects: Backup Tapes, Email, Servers

Deegan v. Nexstar Broad., Inc.

Case Date: 11/18/2015
Citation: Deegan v. Nexstar Broad., Inc., NO. 3:14-cv-1419-J-39PDB, 2015 WL 7272687 (M.D. Fla. Nov. 18, 2015)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Patricia D. Barksdale
Rule(s): Rule 26; Rule 37
Issues:

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

Resolution:

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.

Relevant Documents:

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)

E-Discovery Issues: Motion to Compel
E-discovery Tags: Preservation and Collection, Privilege, Sanctions, Spoliation, Work Product
E-discovery subjects: Email

Stirling Int’l Realty, Inc. v. Soderstrom

Case Date: 05/15/2015
Citation: Stirling Int'l Realty, Inc. v. Soderstrom, Case No: 6:14-cv-1109-Orl-40TBS, 2015 WL 2354803 (M.D. Fla. May 15, 2015)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: Paul G. Byron
Issues:

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

Resolution:

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.

Relevant Documents:

Amended Motion to Dismiss (Doc. 32) 

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

Order on Motion to Dismiss (Doc. 37)

 

E-Discovery Issues: Motion to Dismiss
E-discovery Tags: Custodian, Possession or Control, Privacy, Sources of ESI
E-discovery subjects: Computer, Email, Internet usage

Bradfield v. Mid-Continent Cas. Co.

Case Date: 09/15/2014
Citation: Bradfield v. Mid-Continent Cas. Co., Case No: 5:13-cv-222-Oc-10PRL, 2014 WL 4626864 (M.D. Fla. Sept. 15, 2014)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Philip R. Lammens
Rule(s): Rule 26
Issues:

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

Resolution:

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.

Relevant Documents:

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) 

 

E-Discovery Issues: Motion for Sanctions, Motion for Spoliation, Motion to Compel
E-discovery Tags: Costs, Data Recovery, Forensic Analysis/Examination, Privacy, Relevancy, Sanctions, Sources of ESI, Spoliation
E-discovery subjects: Computer, Email, Servers

EEOC v. SunTrust Bank

Case Date: 04/07/2014
Citation: EEOC v. SunTrust Bank, Case No. 8:12-cv-1325-T-33MAP, 2014 WL 1364982 (M.D. Fla. Apr. 7, 2014)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: Virginia M. Hernandez Covington
Issues:

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

Resolution:

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.

Relevant Documents:

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) 

 

 

E-Discovery Issues: Adverse Inference, Litigation Hold
E-discovery Tags: Possession or Control, Preservation and Collection, Sanctions, Sources of ESI, Spoliation
E-discovery subjects: Surveillance Footage

Teledyne Instruments, Inc. v. Cairns

Case Date: 10/25/2013
Citation: Teledyne Instruments, Inc. v. Cairns, Case No: 6:12-cv-854-Orl-28TBS, 2013 WL 5781274 (M.D. Fla. Oct. 25, 2013)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Thomas B. Smith
Rule(s): Rule 26; Rule 34
Issues:

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.

Resolution:

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.

Relevant Documents:

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) 

 

 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Bates Stamping, Electronic Discovery Reference Model, Forensic Analysis/Examination, Form of Production, Indexing, Metadata, Possession or Control, Preservation and Collection, Privilege, Sedona Conference, Sources of ESI, Vendor
E-discovery subjects: Computer, Email, Hard drive, Removable Drive

Salvato v. Miley

Case Date: 06/11/2013
Citation: Salvato v. Miley, Case No:5:12-CV-635-Oc-10PRL, 2013 WL 2712206 (M.D. Fla. June 11, 2013)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Philip R. Lammens
Rule(s): Rule 26
Issues:

Plaintiff brought motion to compel responses to discovery requests in wrongful death claim.

Resolution:

The Court denied Plaintiff’s motion to compel. Plaintiff sought information that was not reasonably calculated to lead to the discovery of admissible evidence, and instead sought information that amounted to nothing more than a fishing expedition.

Relevant Documents:

Motion to Compel Responses to Discovery Request (Doc. 27) 

Response in Opposition to Motion to Compel (Doc. 29) 

Order on Motion to Compel (Doc. 34)

 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Custodian, Privacy, Relevancy
E-discovery subjects: Cell phone, Email, Internet usage, Phone records, Social Media, Text message

Simon Prop. Grp., Inc. v. Lauria

Case Date: 12/13/2012
Citation: Simon Prop. Grp., Inc. v. Lauria, Case No. 6:11-cv-01598-Orl-31KRS, 2012 WL 6859404 (M.D. Fla. Dec. 13, 2012)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Karla R. Spaulding
Issues:

Plaintiff moved for spoliation sanctions in a case where Defendant created numerous fraudulent companies and identities to skim money from Plaintiff, and then disposed of a laptop containing evidence.

Resolution:

The magistrate recommended that the spoliation sanctions be granted. Defendant knowingly disposed of a laptop containing essential documents, despite knowing litigation was reasonably anticipated and that she had a duty to preserve the information on the laptop. The Court easily found bad faith on behalf of Defendant, as Defendant threw her laptop into a river to cover her tracks.

Relevant Documents:

Motion for Sanction for Spoliation of Evidence (Doc. 231) 

Report and Recommendations (Doc. 256)

Objections to Report and Recommendations and Response to Motion for Spoliation of Evidence (Doc. 259) 

Response to Objections to Report and Recommendation and Response to Motion for Spoliation (Doc. 286) 

Order Adopting Report and Recommendations (Doc. 290)

E-Discovery Issues: Motion for Sanctions, Motion for Spoliation
E-discovery Tags: Costs, Metadata, Possession or Control, Preservation and Collection, Sanctions, Spoliation
E-discovery subjects: Computer, Email

Lee v. PMSI, Inc.

Case Date: 05/06/2011
Citation: Lee v. PMSI, Inc., CASE NO.: 8:10-cv-2904-T-23TBM, 2011 WL 1742028 (M.D. Fla. May 6, 2011)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: Steven D. Merryday
Issues:

In an action for pregnancy discrimination, Defendant counterclaimed and alleged Plaintiff violated the Computer Fraud and Abuse Act (CFAA) by engaging in “excessive internet usage” and checking personal email and social media accounts during work. Plaintiff moved to dismiss Defendant’s counterclaim.

Resolution:

The Court granted Plaintiff’s motion to dismiss. The Computer Fraud and Abuse Act (CFAA) was meant for loss of data, not loss of productivity. Plaintiff did not exceed her authorization, did not access any restricted information, and did not damage any of Defendant’s data. Therefore, the Court held Plaintiff did not violate the CFAA and dismissed Defendant’s counterclaim.

Relevant Documents:

Motion to Dismiss Count II of Plaintiff’s Complaint (Doc. 4) 

Answer and Affirmative Defenses (Doc. 5) 

Amended Answer and Defenses and Counter Claim (Doc. 12) 

Motion to Strike Counterclaim (Doc. 13) 

Response in Opposition to Motion to Strike Counterclaim (Doc. 17) 

Order on Motion to Strike (Doc. 18)

 

E-Discovery Issues: Motion to Dismiss
E-discovery Tags: Custodian
E-discovery subjects: Computer, Email, Internet usage, Social Media

PharMerica, Inc. v. Arledge

Case Date: 03/21/2007
Citation: PharMerica, Inc. v. Arledge, Case No. 8:07-cv-486-T-26MAP, 2007 WL 865510 (M.D. Fla. Mar. 21, 2007)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: Richard A. Lazzara
Issues:

Plaintiff moved for a temporary restraining order to protect its trade secrets from further disclosure by a former high-level employee.

Resolution:

The Court granted Plaintiff’s motion for a temporary restraining order. Plaintiff successfully demonstrated a likelihood of success on the merits, as Defendant copied proprietary trade secret information from Plaintiff and then deleted the information from his work computer in clear violation of the Computer Fraud and Abuse Act, his nondisclosure agreement with Plaintiff, and Florida’s trade secrets statute. Plaintiff also successfully demonstrated irreparable harm, that it would be harmed more than Defendant if the restraining order was not granted, and that the public interest would be served in granting the temporary restraining order.

Relevant Documents:

Motion for Temporary Restraining Order and/or Permanent Injunction (Doc. 2)

Order on Emergency Motion for Temporary Restraining Order and/or Preliminary Injunction (Doc. 10) 

 

E-Discovery Issues: Temporary Restraining Order
E-discovery Tags: Custodian, Forensic Analysis/Examination, Trade Secrets
E-discovery subjects: Computer, Email, Hard drive, Removable Drive

Lockheed Martin Corp. v. Speed

Case Date: 08/01/2006
Citation: Lockheed Martin Corp. v. Speed, 81 U.S.P.Q.2d (BNA) 1669 (M.D. Fla. 2006)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: Gregory Presnell
Issues:

Plaintiff alleged that three former employees violated the Computer Fraud and Abuse Act (CFAA) when they copied proprietary information and left Lockheed Martin to join rival L-3 Communications.

Resolution:

The Court granted Defendants’ motion to dismiss. Plaintiff failed to allege that Defendants violated the CFAA. Under the CFAA, Plaintiff needed to show that Defendants were not authorized or exceeded authorization, which Plaintiff could not do. Further, Plaintiff failed to allege Defendants violated the damage provision of the CFAA, as there was no impairment of any data.

Relevant Documents:

Motion to Dismiss (Doc. 53) 

Motion to Dismiss (Doc. 68)

Response in Opposition to Motion to Dismiss (Doc. 71)

Response in Opposition to Motion to Dismiss (Doc. 75)

Order on Motion to Dismiss (Doc. 112)

E-Discovery Issues: Motion to Dismiss
E-discovery Tags: Custodian, Trade Secrets
E-discovery subjects: Computer

Jones v. United States

Case Date: 05/22/2006
Citation: Jones v. United States, Case No. 8:02-cr-122-T-24EAJ, 8:06-cv-851-T-24EAJ, 2006 WL 1406584 (M.D. Fla. May 22, 2006)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: Susan C. Bucklew
Rule(s): 4th Amendment
Issues:

Defendant moved to vacate or correct an illegal sentence, alleging that his Fourth Amendment rights were violated when a co-conspirator was allowed to testify using formerly suppressed evidence obtained from pagers.

Resolution:

The Court denied Defendant’s motion. Although most of Defendant’s argument was procedurally barred, the Court quoted a passage pointing out that Defendant had no right to privacy in electronic pager communications when a co-conspirator waived privacy rights and testified. Moreover, Defendant’s ineffective assistance of counsel claim was denied as Defendant did not show prejudice or deficient performance on behalf of his counsel.

Relevant Documents:

Motion to Vacate Sentence (Doc. 1)

Memorandum in Support of Motion to Vacate Sentence (Doc. 2)

Order Denying Motion to Vacate (Doc. 4)

E-Discovery Issues: Admissibility
E-discovery Tags: Privacy, Sources of ESI
E-discovery subjects: Text message

St. Luke’s Cataract & Laser Inst., P.A. v. Sanderson

Case Date: 05/12/2006
Citation: St. Luke's Cataract & Laser Inst., P.A. v. Sanderson, Case No.: 8:06-cv-223-T-MSS, 2006 WL 1320242 (M.D. Fla. May 12, 2006)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Mary S. Scriven
Rule(s): Fed. R. Evid. 901
Issues:

Plaintiff motioned for the admission of evidence from the Internet Archive showing how certain websites looked on specific dates since 2000.

Resolution:

The Court denied Plaintiff’s motion. Plaintiff did not properly authenticate the evidence, as Plaintiff used two fact witnesses without personal knowledge of how the Internet Archive operated. Further, Plaintiff attempted to use testimony from previous litigation to authenticate the evidence, which was not sufficient in the instant case.

Relevant Documents:

Motion for Admission of Evidence (Doc. 46) 

Memorandum Opposing Admission of Evidence (Doc. 49) 

Order on Motion for Admission of Evidence (Doc. 56)

 

E-Discovery Issues: Admissibility
E-discovery subjects: Internet usage

In re Search Warrant

Case Date: 12/23/2005
Citation: In re Search Warrant, Case No. 6:05-MC-168-Orl-31JGG, 2005 U.S. Dist. LEXIS 44507 (M.D. Fla. Dec. 23, 2005)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: Gregory Presnell
Rule(s): Fed. R. Crim. P. 41
Issues:

Whether the Court can issue a search warrant for production of electronic evidence outside of the Court’s jurisdiction in a non-terrorism case.

Resolution:

The Court reversed the magistrate’s denial of a search warrant. The Court determined that jurisdiction meant “territorial jurisdiction,” and used statutory interpretation canons to determine that any other reading would render the language superfluous. Further, the change in language of Fed. R. Crim. P. 41 from “under” to “using the procedures described in” simply meant the search warrant had to be obtained using the normal procedural elements of Rule 41. Therefore, under the Patriot Act and Fed. R. Crim. P. 41, the Court determined that search warrants could be issued in non-terrorism related cases from courts with territorial jurisdiction to courts in different districts.

E-Discovery Issues: Admissibility
E-discovery Tags: Preservation and Collection
E-discovery subjects: Internet usage

UnitedHealthcare of Fla., Inc. v. Am. Renal Assocs. LLC

Case Date: 10/20/2017
Citation: UnitedHealthcare of Fla., Inc. v. Am. Renal Assocs. LLC, Civil No. 16-cv-81180-Marra/Matthewman, 2017 WL 4785457 (S.D. Fla. Oct. 20, 2017)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: William Matthewman
Rule(s): Rule 26
Issues:

Plaintiff argued for the reconsideration of the Court’s prior discovery order, alleging that the discovery order was unfair and did not properly narrow the additional custodian and key word search discovery.

Resolution:

The Court granted Plaintiffs’ motion for reconsideration in part and denied it in part. With respect to the additional custodians and search terms, the Court clarified that the addition of custodians and search terms did not alter the original obligations of the discovery order, and noted that such discovery still had to be relevant and proportional. Further, because of the litigiousness of the past discovery orders, the Court ordered Plaintiffs and Defendants to cooperate in discovery and noted it would be considering cost shifting and sanctions in the future. The Court denied Plaintiffs’ assertion that Defendants should have been required to produce a privilege log because of the omission of one non-privileged document.

Relevant Documents:

Motion for Modification of Omnibus Discovery Order (Doc. 291) 

Response in Opposition to Motion for Modification (Doc. 297) 

Reply in Support of Motion for Modification (Doc. 304)

Motion for Reconsideration (Doc. 315) 

Order on Motion for Reconsideration (Doc. 329)

 

E-Discovery Issues: Motion for Reconsideration
E-discovery Tags: Communication/Cooperation, Custodian, Form of Production, Preservation and Collection, Privilege, Proportionality, Relevancy, Sedona Conference

Mohamed v. American Motor Co.

Case Date: 09/28/2017
Citation: Mohamed v. Am. Motor Co., Case No. 15-23352-Civ-COOKE/TORRES, 2017 WL 4310757 (S.D. Fla. Sept. 28, 2017)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal District Judge: Marcia G. Cooke
Rule(s): Fed. R. Evid. 702
Issues:

Defendant filed a motion to exclude Plaintiff’s expert report, alleging that Plaintiff’s expert was not qualified as an expert and used methodologies that were not reliable.

Resolution:

The Court granted Defendant’s motion to exclude. Although the Court determined that Plaintiff’s expert was sufficiently qualified to provide an expert opinion, the Court did not consider the Plaintiff’s expert’s analysis reliable enough to submit to the jury. Plaintiff’s expert did not actually test the specific platform at issue in the instant case.

Relevant Documents:

Motion to Exclude Expert Report Supplemental Report and Testimony (Doc. 160)

Response in Opposition to Motion to Exclude (Doc. 161) 

Reply in Support of Motion to Exclude (Doc. 169)

Order on Motion to Exclude (Doc. 301)

E-Discovery Issues: Motion to Exclude
E-discovery Tags: Forensic Analysis/Examination
E-discovery subjects: Cell phone, Phone records, Software, Text message

Heralds of the Gospel Found., Inc. v. Varela

Case Date: 06/23/2017
Citation: Heralds of the Gospel Found., Inc. v. Varela, CASE NO. 17-22281-CIV-COOKE/GOODMAN, 2017 WL 3868421 (S.D. Fla. June 23, 2017)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Jonathan Goodman
Issues:

Plaintiffs moved for a temporary restraining order in a case of copyright infringement and misappropriation of trade secrets.

Resolution:

The Court recommended that the temporary restraining order be granted. Plaintiff demonstrated a likelihood of success on the merits with respect to the copyright and trade secret misappropriation claims. Additionally, Plaintiff sufficiently demonstrated irreparable harm, as Plaintiff was able to show past damages to its reputation and donations which indicated that future harm was not mere speculation. Further, a balance of hardships was heavily in Defendant’s favor, and public interests would be protected by strengthening trade secret protection.

Relevant Documents:

Motion to Strike (Doc. 21) 

Response to Motion to Strike (Doc. 29)

Order on Motion to Strike (Doc. 64)

E-Discovery Issues: Temporary Restraining Order
E-discovery Tags: Identical Copies, Possession or Control, Sources of ESI, Trade Secrets
E-discovery subjects: Email, Internet usage, Social Media

AH Biscayne Inv’r, LLC v. 1st Sun Props., LLC

Case Date: 06/07/2017
Citation: AH Biscayne Inv'r, LLC v. 1st Sun Props., CASE NO. 16-23573-Civ-COOKE/TORRES, 2017 WL 3115906 (S.D. Fla. June 7, 2017)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Edwin G. Torres
Issues:

In a real estate dispute, Defendant sought to compel the production of documents, alleging that Plaintiff improperly classified a substantial amount of documents as privileged.

Resolution:

The Court granted Defendant’s motion to compel in part and denied it in part. With respect to the remaining documents at issue, the Court approved of an in camera inspection of a small sample size of the documents to determine the validity of the attorney-client privilege claims since Plaintiff designated such a large amount of documents as privileged.

Relevant Documents:

Motion to Compel Production of Improperly Redacted and Withheld Documents (Doc. 86)

Response in Opposition to Motion to Compel (Doc. 89)

Memorandum in Support of Motion to Compel (Doc. 91)

Order on Motion to Compel (Doc. 92)

E-Discovery Issues: Motion to Compel
E-discovery Tags: Attorney-Client, Communication/Cooperation, Privilege
E-discovery subjects: Email

Direct Purchaser Class Plaintiffs v. Apotex Corp.

Case Date: 05/15/2017
Citation: Direct Purchaser Class Plaintiffs v. Apotex Corp., CASE NO. 16-62492-MC-ZLOCH, 2017 WL 4230124 (S.D. Fla. May 15, 2017)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal District Judge: William J. Zloch
Rule(s): Rule 26; Rule 45
Issues:

Whether disclosure of Defendant’s sales data in an antitrust suit would outweigh Defendant’s interests in trade secret data, since sales and pricing information in the generic drug market is generally considered trade secret information.

Resolution:

The Court granted the motion to compel. Although Defendant sought protection of trade secret information, the Court found the sales data information necessary for the pending antitrust litigation suit and considered a protective order sufficient to protect Defendant’s trade secret interests.

Relevant Documents:

Motion to Compel Compliance with Non-Party Subpoena (Doc. 1)

Opposition to Motion to Compel Production (Doc. 12)

Order on Motion to Compel (Doc. 14)

E-Discovery Issues: Motion to Compel, Protective Order
E-discovery Tags: Non-Party Discovery, Privilege, Trade Secrets

Buslepp v. Improv Miami, Inc.

Case Date: 05/04/2012
Citation: Buslepp v. Improv Miami, Inc., No. 12–60171–CIV, 2012 WL 1560408 (S.D. Fla. May 5, 2012)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal District Judge: James I. Cohn
Issues:

Plaintiff brought a class action lawsuit against Defendant pursuant to the Telephone Consumer Protection Act (TCPA), alleging Defendant sent unsolicited text messages. Defendant moved to dismiss.

Resolution:

The Court denied Defendant’s motion to dismiss. Plaintiff’s allegations were sufficient under Twombly and Iqbal because they contained certain factual allegations and put the Defendant on notice. Further, contrary to Defendant’s assertion, Plaintiff did not need to be charged for the text message to have standing for the lawsuit as the use of a disjunctive “or” covered different situations.

Relevant Documents:

Motion to Dismiss (Doc. 6)

Response in Opposition to Motion to Dismiss (Doc. 8)

Order Denying Motion to Dismiss (Doc. 17)

E-Discovery Issues: Motion to Dismiss
E-discovery subjects: Cell phone, Phone records, Text message

Keim v. ADF MidAtlantic, LLC

Case Date: 08/10/2016
Citation: Keim v. ADF MidAtlantic, LLC, 199 F. Supp. 3d 1362 (S.D. Fla. 2016)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal District Judge: Kenneth A. Marra
Issues:

Plaintiff brought a class action suit pursuant to the Telephone Consumer Protection Act (TCPA) against Pizza Hut franchisees for using text-message marketing companies to promote their products. Defendants challenged for lack of personal jurisdiction.

Resolution:

The Court denied Defendants’ motion to dismiss for lack of personal jurisdiction. The text-messaging companies, acting on behalf of Defendants, made targeted communications into the state of Florida, subjecting Defendants to personal jurisdiction under Florida’s long-arm statute. Additionally, the Court conducted a three-part test and determined that specific personal jurisdiction met due process requirements.

Relevant Documents:

Class Action Complaint (Doc. 97) 

Motion to Dismiss Amended Complaint for Lack of Personal Jurisdiction (Doc. 100)

Motion to Dismiss for Lack of Personal Jurisdiction (Doc. 162)

E-Discovery Issues: Motion to Dismiss
E-discovery subjects: Cell phone, Phone records, Text message

Living Color Enters., Inc. v. New Era Aquaculture, Ltd.

Case Date: 03/22/2016
Citation: Living Color Enters., Inc. v. New Era Aquaculture, Ltd., Case No. 14–cv–62216–MARRA/MATTHEWMAN, 2016 WL 1105297 (N.D. Fla. Mar. 22, 2016)
Court Type: Federal District
Court: Northern District of Florida (N.D. Fla.)
Judge: Federal Magistrate Judge: William Matthewman
Rule(s): Rule 37
Issues:

Plaintiff moved for sanctions against Defendant for the destruction of certain text messages that Defendant had a duty to preserve.

Resolution:

The Court denied Plaintiff’s motion for sanctions. The Court did not find any prejudice to the Defendant, as the text messages at issue had largely been produced by another party. Further, the Court did not find bad faith sufficient to support spoliation sanctions because Defendant’s actions were negligent at worse in failing to change the auto-deletion function on his phone.

Relevant Documents:

Motion for Sanctions (Doc. 200)

Response in Opposition to Motion for Sanctions (Doc. 203)

Reply in Support of Motion for Sanctions (Doc. 204)

Order on Motion for Sanctions (Doc. 241)

E-Discovery Issues: Motion for Sanctions, Motion for Spoliation
E-discovery Tags: Data Retention, Preservation and Collection, Sanctions, Spoliation
E-discovery subjects: Email, Text message

Hankerson v. Fort Lauderdale Scrap, Inc.

Case Date: 02/02/2016
Citation: Hankerson v. Fort Lauderdale Scrap, Inc., CASE NO. 15-60785-CIV-ZLOCH, 2016 WL 8793514 (S.D. Fla. Feb. 2, 2016)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal District Judge: William J. Zloch
Rule(s): Rule 26; Rule 34; Rule 37
Issues:

Plaintiff moved to compel Defendant to comply with its production requests of certain electronically stored information relevant to pay stubs and work records.

Resolution:

The Court granted Plaintiff’s motion to compel in part and denied it in part. The Court did not permit Plaintiff to inspect Defendant’s records, but instead ordered Defendant to produce all electronic documents relating to pay stubs or work hours that were within its control.

Relevant Documents:

Motion to Compel Inspection of Electronically Stored Information (Doc. 55)

Response in Opposition to Motion to Compel Inspection of ESI (Doc. 59)

Reply in Support of Motion to Compel Inspection of ESI (Doc. 62)

Order on Motion to Compel (Doc. 63)

 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Costs, Possession or Control, Privacy
E-discovery subjects: Computer, Database

Mancuso v. Fla. Metro. Univ., Inc.

Case Date: 01/28/2011
Citation: Mancuso v. Fla. Metro. Univ., Inc., No. 09–61984–CIV, 2011 WL 310726 (S.D. Fla. Jan. 28, 2011)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Barry S. Seltzer
Rule(s): Rule 45
Issues:

Plaintiff sought a protective order following several subpoenas duces tecum, hoping to strike certain information and limit the scope.

Resolution:

The Court granted Plaintiff’s motion in part. To the extent that Plaintiff sought a protective order on the subpoenas sent to MySpace and Facebook, the Court did not have jurisdiction as the subpoenas were issued in California. With respect to the subpoenas issued to AT & T and Bank of America, the Court limited discovery to information necessary to determine Plaintiff’s activity during claimed overtime. As such, the content of specific text messages or bank transactions was not necessary.

Relevant Documents:

Motion to Quash (Doc. 45)

Response in Opposition to Motion to Quash (Doc. 49)

Order on Motion to Quash (Doc. 142)

 

E-Discovery Issues: Motion for Protective Order
E-discovery Tags: Non-Party Discovery, Possession or Control, Privilege, Relevancy
E-discovery subjects: Cell phone, Internet usage, Phone records, Social Media, Text message

Kilpatrick v. Breg, Inc.

Case Date: 06/22/2009
Citation: Kilpatrick v. Breg, Inc., No. 08–10052–CIV, 2009 WL 1764829 (S.D. Fla. June 22, 2009)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Andrea M. Simonton
Issues:

Plaintiff moved to compel production of electronically stored information, alleging Defendant’s production was incomplete.

Resolution:

Plaintiff’s motion to compel was granted in part. The Court allowed Plaintiff to hire an outside vendor at his own expense to search email archives and certain backup tapes for a limited amount of search terms, since there was evidence that Defendant knew about the chondrolysis issue several months before indicated in deposition testimony. However, the Court limited and balanced the discovery because Plaintiff’s surgery procedure was still over a year before any evidence of potential issues came to light.

Relevant Documents:

Motion to Compel (Doc. 96)

Motion to Compel Supplemental Responses to First Request for Production (Doc. 97)

Motion to Compel Supplemental Responses to Second Request for Production (Doc. 98)

Motion to Compel Supplemental Responses to Fifth Request for Production (Doc. 99)

Response in Opposition to Motion to Compel (Doc. 118)

Response in Opposition to Motion to Compel (Doc. 119)

Reply in Support to Motions to Compel (Doc. 152)

Order on Discovery Motions (Doc. 164)

E-Discovery Issues: Motion to Compel
E-discovery Tags: Cost Shifting, Costs, Data Backup, Data Recovery, Keyword Search, Preservation and Collection, Relevancy, Vendor
E-discovery subjects: Backup Tapes, Email

In re Abilify (Aripiprazole) Prods. Liab. Litig.

Case Date: 12/29/2017
Citation: In re Abilify (Aripiprazole) Prods. Liab. Litig., Case No. 3:16–md–2734, 2017 WL 6757558 (N.D. Fla. Dec. 29, 2017)
Court Type: Federal District
Court: Northern District of Florida (N.D. Fla.)
Judge: Federal Magistrate Judge: Gary R. Jones
Rule(s): Rule 26
Issues:

Plaintiffs sought to compel production of Defendants’ documents despite Defendant’s claims of work product and attorney-client privilege.

Resolution:

The Court reviewed Plaintiffs’ objections to Defendants’ privilege claims and held that Defendants’ privilege logs provided adequate detail and were sufficient because the privilege logs did not need to identify specific instances of litigation nor did the privilege logs need to identify specific attorneys attached to the privileged information. Further, the Court held that even factual material could be privileged depending on the context and that information sent to third parties did not automatically waive privilege—what mattered was that the information was communicated in anticipation of litigation. The Court then examined specific instances of documents and, under  in camera review, reviewed each document at issue to determine whether it was privileged information.

Relevant Documents:

Motion to Compel (Doc. 562)

Memorandum of Law in Support of Motion to Compel (Doc. 562-1)

Response in Opposition to Motion to Compel (Doc. 573)

Order on Motion to Compel (Doc. 635)

E-Discovery Issues: Motion to Compel
E-discovery Tags: Attorney-Client, Form of Production, Privilege, Work Product
E-discovery subjects: Email, Removable Drive

Wooden v. Barringer

Case Date: 11/06/2017
Citation: Wooden v. Barringer, Case No. 3:16–cv–446–MCR–GRJ, 2017 WL 5140518 (N.D. Fla. Nov. 6, 2017)
Court Type: Federal District
Court: Northern District of Florida (N.D. Fla.)
Judge: Federal Magistrate Judge: Gary R. Jones
Rule(s): Rule 37
Issues:

Plaintiff brought a case against a correctional officer for use of excessive force. Plaintiff requested production of multiple surveillance footage videos to show the altercation and ensuing clean-up. Upon realizing that the Defendant correctional officer did not preserve certain video surveillance footage, Plaintiff sought spoliation sanctions against Defendant.

Resolution:

The Court denied Plaintiff’s motion for spoliation sanctions. Plaintiff failed to prove that certain video footage ever existed. Further, Defendant had no duty to preserve surveillance footage such as other inmates cleaning up the scene of the altercation, since he was not in possession or control of the evidence. Even assuming that Defendant had a duty to preserve all of the video footage, Plaintiff failed to show he was prejudiced by the loss of the surveillance footage.

Relevant Documents:

Motion for Spoliation Sanction (Doc. 50)

Response in Opposition to Motion for Sanction (Doc. 52)

Order on Motion for Sanctions (Doc. 56)

 

E-Discovery Issues: Motion for Sanctions
E-discovery Tags: Data Retention, Non-Party Discovery, Possession or Control, Preservation and Collection, Records Retention Policies, Sanctions, Sources of ESI, Spoliation
E-discovery subjects: Surveillance Footage

Lombardo v. Gov’t Emps. Ins. Co.

Case Date: 02/23/2017
Citation: Lombardo v. Gov't Emps. Ins. Co., Case No.: 3:16cv392/MCR/EMT, 2017 WL 3113410 (N.D. Fla. Feb. 23, 2017)
Court Type: Federal District
Court: Northern District of Florida (N.D. Fla.)
Judge: Federal Magistrate Judge: Elizabeth M. Timothy
Rule(s): Rule 26
Issues:

The Plaintiff insured brought suit alleging that Defendant GEICO acted in bad faith by not properly defending Plaintiff from suit in an automobile accident.

Resolution:

The Court granted Plaintiff’s motion to compel in part. The Court ordered Defendant GEICO to respond only with documents that were relevant and proportional to Plaintiff’s claim and noted that Plaintiff’s initial production request was overly broad. With respect to concerns about privileged information, the Court suggested a confidentiality agreement and a privilege log for any documents GEICO claimed as privileged.

Relevant Documents:

Plaintiff’s Motion to Compel Additional Documents (Doc. 28)

Defendantss Reponse to Motion to Compel (Doc. 30)

Order on Motion to Compel (Doc. 31)

E-Discovery Issues: Motion to Compel, Production Request
E-discovery Tags: Communication/Cooperation, Privacy, Privilege, Proportionality, Relevancy

Sowell v. Target Corp.

Case Date: 05/28/2014
Citation: Sowell v. Target Corp., No. 5:14–cv–93–RS–GRJ, 2014 WL 2208058 (N.D. Fla. May 28, 2014)
Court Type: Federal District
Court: Northern District of Florida (N.D. Fla.)
Judge: Federal Magistrate Judge: Gary R. Jones
Rule(s): Rule 26
Issues:

Defendant sought a protective order of surveillance footage of a slip-and-fall accident, asserting work product privilege. Alternatively, Defendant sought to delay the production of the surveillance footage until after Plaintiff’s deposition had been taken.

Resolution:

The Court denied Defendant’s protective order. The surveillance footage was initially recorded in the ordinary course of business and was not prepared in anticipation of litigation. Further, Defendant failed to provide any evidence that preserving the video surveillance from automatic erasure was done in anticipation of litigation and not as part of ordinary business practices. Additionally, because the surveillance footage was substantive evidence and not evidence used for impeachment purposes, the Court denied Defendant’s  request to delay production of the video until after Plaintiff’s deposition.

Relevant Documents:

Motion for Protective Order (Doc. 12)

Response in Opposition to Motion for Protective Order (Doc. 15)

Order on Motion for Protective Order (Doc. 21)

E-Discovery Issues: Motion for Protective Order
E-discovery Tags: Data Retention, Preservation and Collection, Privilege, Sources of ESI, Work Product
E-discovery subjects: Surveillance Footage

FDIC v. Brudnicki

Case Date: 06/14/2013
Citation: FDIC v. Brudnicki, 291 F.R.D. 669 (N.D. Fla. 2013)
Court Type: Federal District
Court: Northern District of Florida (N.D. Fla.)
Judge: Federal Magistrate Judge: Gary R. Jones
Rule(s): Rule 26
Issues:

FDIC brought a negligence suit against former bank directors. The FDIC filed a motion for a protective order, which was challenged by Defendants. Defendants moved to compel the production of certain documents, citing concerns over form of production and cost-shifting due to Plaintiff’s ESI protocol.

Resolution:

The Court granted Plaintiff FDIC’s motion for a protective order. As the FDIC was producing the bulk of materials, the FDIC’s protective order was necessary to speed up the production of document requests, and Defendants’ concerns about a blanket protection order could be dealt with through modifications. Defendants’ motion to compel was denied in part and granted in part. With respect to Plaintiff’s ESI protocol, the Court held it was a legitimate means of cost-shifting because proportionality called for Defendant to bear some of the burdens of discovery. Additionally, although Plaintiff had not complied with the first step of the ESI protocol, it was because Plaintiff was awaiting the results of a protection order so sanctions were not warranted.

Relevant Documents:

Motion for Entry of Protective Order (Doc. 13)

Response in Opposition to Motion for Entry of Protective Order (Doc. 14)

Order on Motion for Protective Order (Doc. 24) 

E-Discovery Issues: Discovery Order, Motion for Protective Order, Motion for Sanctions, Motion to Compel
E-discovery Tags: Clawback, Communication/Cooperation, Cost Shifting, Form of Production, Keyword Search, Possession or Control, Preservation and Collection, Privilege, Proportionality, Sanctions, Work Product
E-discovery subjects: Computer, Database, Email

Willie-Koonce v. Miami Sunshine Transfer & Tours Corp.

Case Date: 12/20/2017
Citation: Willie-Koonce v. Miami Sunshine Transfer & Tours Corp., 233 So.3d 1271 (Fla. 3d DCA 2017)
Court Type: District Court of Appeal
Court: Fla. 3d DCA
Judge: Judge: Vance E. Salter
Issues:

Plaintiff appealed the trial court’s dismissal of her personal injury lawsuit for fraud. The trial court dismissed Plaintiff’s lawsuit because Defendant had surveillance footage that clearly showed Plaintiff was being dishonest about the extent of her injuries.

Resolution:

The Court affirmed the trial court’s dismissal. The video surveillance of Plaintiff provided clear evidence of Plaintiff intending to deceive the Court. Further, after being confronted with the surveillance footage Plaintiff could not explain the discrepancies between her testimony. Although the Court realized it was harsh to dismiss Plaintiff’s lawsuit when there was clear evidence of a significant injury and medical expenses, the Court dismissed her lawsuit as a warning to others attempting fraud on the Court.

Relevant Documents:

Appellant’s Reply Brief

Appellee’s Answer Brief

Initial Brief on the Merits

Decision

E-Discovery Issues: Motion to Dismiss
E-discovery Tags: Sanctions
E-discovery subjects: Surveillance Footage

Tenev v. Thurston

Case Date: 03/09/2016
Citation: Tenev v. Thurston, 198 So. 3d 798 (Fla. 2d DCA 2016)
Court Type: District Court of Appeal
Court: Fla. 2d DCA
Judge: Judge: Daniel H. Sleet
Rule(s): Professional Responsibility - Rule 4-3.3
Issues:

Attorney Tenev appealed the trial court’s granting of sanctions. Tenev found out before trial that a juror was Facebook friends with one of Thurston’s employees and moved to strike the juror. The trial court then imposed sanctions on Tenev for violating the no contact rule and for giving evasive answers when questioned how she found out about the Facebook friendship.

Resolution:

The Court reversed the sanctions. The dishonest answers Tenev gave did not amount to a mistrial, and it is not against the rules for attorneys to research jurors. Further, Tenev received the information from her client’s wife and was obligated to prevent potential bias to her client at trial.

Relevant Documents:

Appellant Reply Brief

Amended Appellant Reply Brief

Appellee Answer Brief

Initial Appellant Brief on the Merits

Decision

E-Discovery Issues: Ethics, Motion for Sanctions
E-discovery Tags: Non-Party Discovery, Sanctions
E-discovery subjects: Social Media

David v. Textor

Case Date: 01/06/2016
Citation: David v. Textor, 189 So. 3d 871 (Fla. 4th DCA 2016)
Court Type: District Court of Appeal
Court: Fla. 4th DCA
Judge: Judge: Martha C. Warner
Rule(s): Florida Statute 784.0485
Issues:

Petitioner David appealed a non-final order denying the dissolution of an injunction prohibiting cyberstalking.

Resolution:

The Court reversed the temporary injunction. Petitioner David’s acts did not amount to cyberstalking, as a reasonable person would not suffer severe emotional distress over the acts. Petitioner and Respondent were both sophisticated businessmen, and their comments to one another were normal business dealings that did not amount to threats. Further, comments posted in public could not said to be directed at a specific person pursuant to Florida’s cyberstalking statute.

Relevant Documents:

Appellant’s Reply Brief

Appellee’s Answer Brief

Amicus Curiae Brief

Initial Brief on Merits

Decision

E-Discovery Issues: Preliminary Injunction
E-discovery subjects: Email, Social Media, Text message

Seaboard Marine Ltd. v. Clark

Case Date: 09/16/2015
Citation: Seaboard Marine Ltd. v. Clark, 174 So. 3d 626 (Fla. 3d DCA 2015)
Court Type: District Court of Appeal
Court: Fla. 3d DCA
Judge: Judge: Edwin A. Scales III
Rule(s): Fla. R. Civ. P. 1.280
Issues:

Petitioner sought to quash the trial court’s order to compel the production of ninety-one post-accident photographs, alleging that they were protected by the work-product privilege.

Resolution:

The Court granted the petition. Plaintiff Clark could only obtain Petitioner’s work product on a showing of undue hardship. However, Plaintiff failed to depose anyone or obtain any other post-accident photographs on his own. Plaintiff did not do his due diligence in discovering relevant evidence himself and could therefore not show the undue hardship required to obtain Petitioner’s work product.

Relevant Documents:

(Access to the case is confidential so the Briefs are unavailable)

Decision

E-Discovery Issues: Motion to Compel, Production Request
E-discovery Tags: Attorney-Client, Privilege, Work Product
E-discovery subjects: Photographs, Surveillance Footage

Roberts v. Christie’s Great Estates, Inc.

Case Date: 03/30/2016
Citation: Roberts v. Christie's Great Estates, Inc., Case No. 2009CA040545, 2016 Fla. Cir. LEXIS 5049 (Fla. 15th Cir. Ct. Mar. 30, 2016)
Court Type: Florida State Court
Court: Circuit Court
Judge: Judge: Meenu Sasser
Issues:

Plaintiffs moved for an adverse inference instruction sanction for spoliation after Defendants submitted 20,000 emails without the corresponding attachments.

Resolution:

The Court denied Plaintiffs’ motion for an adverse inference instruction. Under the Fourth District Court of Appeal’s spoliation test, Plaintiffs could not prove that the evidence existed, as Plaintiffs merely speculated that the missing attachments amounted to evidence of spoliation. Further, Plaintiffs did not show the evidence was crucial to the prima facie case, since there was still production of over 275,000 non-objectionable documents. Additionally, Plaintiffs could not prove that the missing attachments amounted to an intentional destruction of evidence.

E-Discovery Issues: Adverse Inference, Motion for Sanctions, Motion for Spoliation
E-discovery Tags: Sanctions, Spoliation
E-discovery subjects: Email

Jacobs Keeley, PLLC v. Chief Judge of Seventeenth Judicial Circuit

Case Date: 06/17/2015
Citation: Jacobs Keeley, PLLC v. Chief Judge of Seventeenth Judicial Circuit, 169 So. 3d 192 (Fla. 4th DCA 2015)
Court Type: District Court of Appeal
Court: Fla. 4th DCA
Judge: Judge: Robert M. Gross
Rule(s): Florida Rules of Judicial Administration 2.420
Issues:

Petitioner sought a writ of mandamus to compel the Chief Judge of the Seventeenth Judicial Circuit to comply with public records requests.

Resolution:

The Court denied the petition in part. Petitioner did not establish the court failed to perform a legal duty, as the court was responsive to public records requests and Petitioner declined to help provide better search terms. With respect to certain emails the court marked as privileged, only an email from a staff attorney transmitting a proposed order was exempt from disclosure.

Relevant Documents:

Decision

E-Discovery Issues: Production Request, Writ of Mandamus
E-discovery Tags: Attorney-Client, Possession or Control, Preservation and Collection, Privilege
E-discovery subjects: Email

Fla. Bar v. Gardiner

Case Date: 06/05/2014
Citation: Fla. Bar v. Gardiner, 183 So. 3d 240 (Fla. 2014) (per curiam)
Court Type: Florida State Court
Court: Florida Supreme Court (Fla.)
Judge: Judge: Per Curiam
Issues:

Whether the referee’s recommendation of a one-year suspension for a judge was appropriate in a case where a judge and prosecuting attorney engaged in an undisclosed significant relationship during a capital trial.

Resolution:

The Court held that a one-year suspension was not appropriate, and approved of disbarment for the judge. Despite mitigating factors, the judge’s ethical misconduct was too harmful to the administration of justice. The judge withheld her relationship with the prosecuting attorney in a capital case despite knowing her obligation to avoid impropriety and to disclose any relevant information.

Relevant Documents:

Opinion

E-Discovery Issues: Ethics
E-discovery subjects: Cell phone, Phone records, Text message

Chace v. Loisel

Case Date: 01/24/2014
Citation: Chace v. Loisel, 170 So. 3d 802 (Fla. 5th DCA 2014)
Court Type: District Court of Appeal
Court: Fla. 5th DCA
Judge: Judge: Jay P. Cohen
Issues:

Whether, prior to entry of final judgment, the judge’s Facebook friend request of a party to the case provided grounds to disqualify.

Resolution:

The Court granted the petition and quashed the order denying the motion to disqualify. Petitioner alleged facts that would cause a reasonable person to fear for the fairness of a trial. Further, in the Court’s eyes, a judge reaching out ex parte to send a “friend” request to a party to the case was far more concerning than a judge “friending” attorneys was was the case in Domville.

Relevant Documents:

Decision

E-Discovery Issues: Ethics, Motion to Disqualify
E-discovery Tags: Communication/Cooperation
E-discovery subjects: Social Media

Domville v. State

Case Date: 01/16/2013
Citation: Domville v. State, 125 So. 3d 178 (Fla. 4th DCA 2013) (per curiam)
Court Type: District Court of Appeal
Court: Fla. 4th DCA
Judge: Judge: Per Curiam
Issues:

Defendant moved for a rehearing and for certification on the question of whether a judge adding a prosecutor as a Facebook friend would lead a reasonably prudent person to fear for the fairness of a trial.

Resolution:

Defendant’s motion for rehearing denied. However, the Court certified Defendant’s question as a question of great public importance.

Relevant Documents:

Decision

E-Discovery Issues: Ethics, Motion to Disqualify
E-discovery Tags: Communication/Cooperation
E-discovery subjects: Social Media

United States v. Mitchell

Case Date: 07/22/2013
Citation: United States v. Mitchell, No. 3:11–cr–248(S1)–J–34TEM, 2013 WL 3808152 (M.D. Fla. July 22, 2013)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Judge: Marcia Morales Howard
Rule(s): 4th Amendment
Issues:

Defendant filed three motions to suppress. In the first motion, Defendant alleged that the search and seizure of a car was invalid because of improper motives and that the search of iPads and an iPhone was invalid due to a lack of consent. In the second and third motions, Defendant moved to suppress recorded conversations made with his current attorney and with another attorney Defendant was considering as new defense counsel.

Resolution:

The Court denied Defendant’s first motion because law enforcement had probable cause to seize Defendant’s vehicle and had consent from a local attorney associated with Defendant to examine the contents of the iPhone and iPads. The Court also denied Defendant’s second and third motions because Defendant spoke with the attorneys on the phone despite having knowledge that his calls were not confidential and were being recorded.

Relevant Documents:

Motion to Suppress Evidence (Doc. 52)

Motion to Suppress Evidence (Doc. 55)

Response in Opposition to Motion to Suppress (Doc. 66)

Response in Opposition to Second Motion to Suppress (Doc. 67)

Authorized Third Motion to Suppress (Doc. 189)

Response in Opposition to Motion to Suppress (Doc. 191)

Order on Motion to Suppress (Doc. 247)

E-Discovery Issues: Motion to Suppress
E-discovery Tags: Attorney-Client, Privacy
E-discovery subjects: Phone records

Allstate Ins. Co. v. Hodges

Case Date: 08/15/2003
Citation: Allstate Ins. Co. v. Hodges, 855 So. 2d 636 (Fla. 2d DCA 2003)
Court Type: District Court of Appeal
Court: Fla. 2d DCA
Judge: Judge: Thomas Edward Stringer
Issues:

Allstate sought petition to reverse trial court’s order for discovery and denial of bond.

Resolution:

The Court denied Allstate’s petition. The Court held that the trial court did not depart from the essential requirements of law in reaching its decision. Compelling Allstate to provide answers to interrogatories concerning Allstate’s relationship with expert physicians comported with Boecher precedent.

Relevant Documents:

Decision

E-Discovery Issues: Motion to Compel
E-discovery Tags: Costs, Data Retention, Possession or Control, Preservation and Collection
E-discovery subjects: Database

Domville v. State

Case Date: 09/05/2012
Citation: Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012) (per curiam)
Court Type: District Court of Appeal
Court: Fla. 4th DCA
Judge: Judge: Per Curiam
Issues:

Criminal Defendant wanted to disqualify a judge whom the Defendant alleged was a Facebook friend of the prosecutor assigned to his case.

Resolution:

Order denying disqualification of the trial judge quashed and remanded. Defendant Domville alleged facts that would lead a reasonable person to question the fairness of his trial, as the judge’s actions seemingly limited his impartiality.

Relevant Documents:

Decision

E-Discovery Issues: Ethics, Motion to Disqualify
E-discovery Tags: Communication/Cooperation
E-discovery subjects: Social Media

In re Amendments to Fla. Rules of Civil Procedure—Elec. Discovery

Case Date: 07/05/2012
Citation: In re Amendments to Fla. Rules of Civil Procedure—Elec. Discovery, 95 So. 3d 76 (Fla. 2012) (per curiam)
Court Type: Florida State Court
Court: Florida Supreme Court (Fla.)
Judge: Judge: Per Curiam
Rule(s): Fla. R. Civ. P. 1.200 ; 1.201 ; 1.280 ; 1.340 ; 1.350 ; 1.380 ; 1.410
Issues:

The Florida Bar’s Civil Procedure Rules Committee proposed amendments to the Florida Rules of Civil Procedure particularly addressing electronically stored information.

Resolution:

The Court adopted the seven proposed amendments. Rule 1.200 was amended to allow electronic discovery issues during the pretrial conference. Rule 1.201 was amended to allow the discussion of electronic discovery issues in complex litigation. Rule 1.280 was amended to expressly allow the discovery of ESI. Rules 1.340 and 1.350 were amended to allow the production of ESI. Rule 1.380 was amended to specify that the good faith loss of ESI does not warrant sanctions. Finally, Rule 1.410 was amended to allow a subpoena to request ESI.

Relevant Documents:

Opinion

E-Discovery Issues: Rule Amendments

Willoughby v. State

Case Date: 04/11/2012
Citation: Willoughby v. State, 84 So. 3d 1210 (Fla. 3d DCA 2012)
Court Type: District Court of Appeal
Court: Fla. 3d DCA
Judge: Judge: Juan Ramirez Jr.
Issues:

Defendant was charged and convicted of unlawfully accessing a database and taking confidential information from a computer. Defendant appealed, alleging she had no malicious purpose in taking the confidential information and simply wanted to work from home.

Resolution:

The Court affirmed the trial court’s ruling in part, and reversed in part. With respect to taking confidential information from a computer, the Court upheld Defendant’s conviction because there was no malicious purpose requirement in the statute. However, the Court reversed Defendant’s conviction as to access since Defendant was lawfully allowed to access the confidential information as part of her employment.

Relevant Documents:

Decision

E-Discovery Issues: Verdict Appeal
E-discovery Tags: Forensic Analysis/Examination, Sources of ESI
E-discovery subjects: Computer, Database

Castellano v. Winthrop

Case Date: 01/29/2010
Citation: Castellano v. Winthrop, 27 So. 3d 134 (Fla. 5th DCA 2010)
Court Type: District Court of Appeal
Court: Fla. 5th DCA
Judge: Judge: Kerry I. Evander
Issues:

In a child custody case, Plaintiff mother illegally obtained a USB drive and attempted to use its contents against the Defendant father. Plaintiff filed a petition for writ of certiorari upon the trial court’s disqualification of her counsel.

Resolution:

The Court denied the Plaintiff’s petition. Plaintiff and her counsel obtained an unfair informational advantage through the illegally-obtained USB drive. Disqualification of Plaintiff’s counsel was appropriate where counsel spent approximately 100 hours reviewing the USB drive when it was readily apparent the drive contained privileged and confidential information.

Relevant Documents:

Decision

E-Discovery Issues: Motion to Disqualify
E-discovery Tags: Attorney-Client, Clawback, Communication/Cooperation, Possession or Control, Privilege, Sanctions, Sources of ESI, Work Product
E-discovery subjects: Removable Drive

Minakan v. Husted

Case Date: 01/20/2010
Citation: Minakan v. Husted, 27 So. 3d 695 (Fla. 4th DCA 2010) (per curiam)
Court Type: District Court of Appeal
Court: Fla. 4th DCA
Judge: Judge: Per Curiam
Issues:

In a marriage dissolution case, the husband claimed his wife hacked into his email and forwarded an email protected by attorney-client privilege. The husband moved to disqualify his wife’s attorney, and the trial court granted the disqualification. The wife filed a petition for writ of certiorari.

Resolution:

The Court granted the wife’s petition for certiorari, because the trial court did not hear the wife’s testimony or allow her to present evidence before disqualifying her attorney. The Court remanded the case back to the trial court to determine whether the husband treated his email as confidential and whether the wife gained an unfair advantage in discovering the email.

Relevant Documents:

Decision

E-Discovery Issues: Motion to Disqualify, Waiver of Privilege
E-discovery Tags: Clawback, Communication/Cooperation, Possession or Control, Privilege
E-discovery subjects: Email

Ford Motor Co. v. Hall-Edwards

Case Date: 12/03/2008
Citation: Ford Motor Co. v. Hall-Edwards, 997 So. 2d 1148 (Fla. 3d DCA 2008)
Court Type: District Court of Appeal
Court: Fla. 3d DCA
Judge: Judge: Juan Ramirez Jr.
Rule(s): Rule 26
Issues:

Whether discovery order granting access to all of Ford’s case management databases was proper.

Resolution:

The Court quashed the trial court’s orders. Ford’s case management database was protected by both the work product privilege and the attorney-client privilege, as they were communications between attorneys about pending litigation and contained the mental impressions of counsel.

Relevant Documents:

Decision

E-Discovery Issues: Discovery Order
E-discovery Tags: Attorney-Client, Communication/Cooperation, Data Retention, Privilege, Work Product
E-discovery subjects: Database

State v. Felix

Case Date: 10/06/2006
Citation: State v. Felix, 942 So. 2d 5 (Fla. 5th DCA 2006)
Court Type: District Court of Appeal
Court: Fla. 5th DCA
Judge: Judge: David Monaco
Rule(s): 4th Amendment
Issues:

The Court reviewed the trial court’s granting of Defendant’s motion to suppress and examined whether the search warrant was properly issued.

Resolution:

The Court reversed the trial court’s decision. It held that the period of five months between the initial offense and the warrant did not make the warrant stale, since those in possession of child pornography tend to keep it for long periods of time. Further, although the warrant did not specify Defendant’s new address, it was reasonable to assume that a personal computer would be located at an individual’s residence, meaning there was a likelihood of finding evidence on Defendant’s computer at his new location.

Relevant Documents:

Decision

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: IP Address, Possession or Control, Preservation and Collection, Privacy, Sources of ESI
E-discovery subjects: Computer, Hard drive, Photographs

Menke v. Broward Cty. Sch. Bd.

Case Date: 09/28/2005
Citation: Menke v. Broward Cty. Sch. Bd., 916 So. 2d 8 (Fla. 4th DCA 2005)
Court Type: District Court of Appeal
Court: Fla. 4th DCA
Judge: Judge: Martha C. Warner
Rule(s): 5th Amendment; Fla. R. Civ. P. 1.280; Fla. R. Civ. P. 1.350
Issues:

Whether the production order of Petitioner’s computers would violate his Fifth Amendment and privacy rights.

Resolution:

The Court granted the petition and quashed the discovery order. The Administrative Law Judge’s discovery order granted unfettered access to Petitioner’s computers without acknowledging Petitioner’s privacy and without acknowledging potentially privileged and confidential information.

Relevant Documents:

Decision

E-Discovery Issues: Admissibility, Discovery Order
E-discovery Tags: Possession or Control, Preservation and Collection, Privacy, Privilege, Sources of ESI
E-discovery subjects: Computer, Email, Hard drive

Matos v. State

Case Date: 03/30/2005
Citation: Matos v. State, 899 So. 2d 403 (Fla. 4th DCA 2005)
Court Type: District Court of Appeal
Court: Fla. 4th DCA
Judge: Judge: Carole Y. Taylor
Issues:

Whether the speed recording data from a vehicle black box after the crash was admissible under the Frye standard.

Resolution:

The Court upheld the trial court’s ruling and affirmed the admissibility of the black box evidence. The data from the black box satisfied the Frye standard and was generally accepted in the scientific community. Further, Florida’s speed recording statute did not apply, as this was a black box from a personal vehicle and the statute was only meant for law enforcement officers using radar.

Relevant Documents:

Decision

E-Discovery Issues: Admissibility
E-discovery Tags: Preservation and Collection, Privacy, Sources of ESI
E-discovery subjects: Vehicle Black Box

Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co.

Case Date: 03/23/2005
Citation: Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., No. CA 03-5045 AI, 2005 WL 674885 (Fla. 15th Cir. Ct. Mar. 23, 2005)
Court Type: Florida State Court
Court: Circuit Court
Judge: Judge: Elizabeth Marie T. Maass
Rule(s): Fla. R. Civ. P. 1.380
Issues:

Plaintiff filed a Renewed Motion for Entry of Default Judgment for continued violations of discovery orders.

Resolution:

The Court granted the motion in part. Defendant’s discovery violations infected the entire discovery process. Defendant failed to account for numerous backup tapes in a timely manner, ran search scripts that were defective without notifying Plaintiff, and sought to hide from the Court certain essential information because of an SEC inquiry. Even after the Court granted an adverse inference on March 1, 2005, Defendant’s discovery abuses continued unabated.

E-Discovery Issues: Motion for Default Judgment
E-discovery Tags: Data Backup, Data Retention, Possession or Control, Preservation and Collection, Privilege, Sanctions, Spoliation, Vendor
E-discovery subjects: Backup Tapes, Email

Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co.

Case Date: 03/01/2005
Citation: Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Case No. 502003CA005045XXOCAI, 2005 WL 4947328 (Fla. 15th Cir. Ct. Mar. 1, 2005)
Court Type: Florida State Court
Court: Circuit Court
Judge: Judge: Elizabeth Marie T. Maass
Rule(s): Fla. R. Civ. P. 1.380
Issues:

Plaintiff moved for an adverse instruction inference and a motion to compel further discovery against Defendant due to Defendant’s history of noncompliance with discovery orders.

Resolution:

The Court granted Plaintiff’s motion for an adverse inference instruction because of Defendant’s long practice of not properly producing all necessary information, not properly stopping the 12 month automatic deletion of backup tapes, overwriting necessary emails, and improperly certifying compliance with discovery orders. The Court, however, denied Plaintiff’s motion to compel because the jury trial was quickly approaching and fact discovery in the litigation had already used an enormous amount of resources.

E-Discovery Issues: Adverse Inference, Motion to Compel, Preservation
E-discovery Tags: Data Backup, Data Retention, Possession or Control, Preservation and Collection, Privilege, Sanctions, Spoliation, Vendor
E-discovery subjects: Backup Tapes, Email

O’Brien v. O’Brien

Case Date: 02/11/2005
Citation: O'Brien v. O'Brien, 899 So. 2d 1133 (Fla. 5th DCA 2005)
Court Type: District Court of Appeal
Court: Fla. 5th DCA
Judge: Judge: Thomas D. Sawaya
Issues:

A wife installed spyware on her husband’s computer and monitored his activities and communications with another woman. Upon finding out, the husband filed for a temporary and permanent injunction against using the information obtained from the spyware, and the court granted the injunctions. The wife appealed.

Resolution:

The Court held that the trial court did not abuse its discretion in denying the usage of the communications obtained from the spyware program. The communications between the husband and another woman were obtained illegally and it was therefore within the power of the court to deny admission of the evidence.

Relevant Documents:

Decision

E-Discovery Issues: Admissibility
E-discovery Tags: Possession or Control, Preservation and Collection, Privacy
E-discovery subjects: Computer, Email, Hard drive, Internet usage, Screenshot, Spyware

Strasser v. Yalamanchi

Case Date: 03/20/1996
Citation: Strasser v. Yalamanchi, 669 So. 2d 1142 (Fla. 4th DCA 1996)
Court Type: District Court of Appeal
Court: Fla. 4th DCA
Judge: Judge: Barbara Pariente
Rule(s): Fla. R. Civ. P. 1.350
Issues:

Defendant sought petition to reverse trial court’s order for discovery, alleging the discovery order was overbroad and an invasion of privacy.

Resolution:

The Court granted the petition and quashed the order. The trial court’s discovery order gave Plaintiff unfettered access to Defendant’s computer without any safeguards in place to protect any privileged or private information. The Court noted that the discovery order may have been appropriate if Plaintiff could show there was no other reasonable means of obtaining the information, as well as a specific restricted search to protect privileged information.

Relevant Documents:

Decision

E-Discovery Issues: Discovery Order
E-discovery Tags: Data Recovery, Forensic Analysis/Examination, Possession or Control, Preservation and Collection, Privacy, Privilege, Sources of ESI
E-discovery subjects: Computer, Hard drive, Software

United States v. Gomez

Case Date: 08/31/2011
Citation: United States v. Gomez, 807 F. Supp. 2d 1134 (S.D. Fla. 2011)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Edwin G. Torres
Rule(s): 4th Amendment
Issues:

Defendant moved to suppress evidence from the warrantless search of his cell phone, alleging violations of his Fourth Amendment rights.

Resolution:

The Magistrate recommended that Defendant’s motion to suppress be denied, and the Court accepted the recommendation. Defendant’s cell phone was seized incident to a lawful arrest, and exigent circumstances existed that gave authorities the right to search Defendant’s cell phone without a warrant. Defendant’s phone rang multiple times while in custody with a clearly displayed name on the cell phone in plain view. Further, Defendant was arrested while transporting drugs and the search of his cell phone call history was arrest-related evidence.

Relevant Documents:

Motion to Suppress (Doc. 37)

Response in Opposition to Motion to Suppress (Doc. 41)

Order on Motion to Suppress (Doc. 48)

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Possession or Control, Preservation and Collection, Privacy, Sources of ESI
E-discovery subjects: Cell phone, Text message

Angelotti v. Roth

Case Date: 11/17/2006
Citation: Angelotti v. Roth, No. 06-10068-CIV-KING/GARBER, 2006 WL 3666849 (S.D. Fla. Nov. 17, 2006)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Barry L. Garber
Issues:

Plaintiff moved for sanctions for lack of video surveillance evidence production.

Resolution:

The Court denied Plaintiff’s motion for sanctions. Plaintiff failed to demonstrate that the absence of the video footage was due to bad faith.

Relevant Documents:

Motion in Limine (Doc. 7)

Motion for Sanctions or for Special Jury Instruction (Doc. 8)

Response in Opposition to Motion for Special Jury Instructions (Doc. 13)

Order on Motion for Sanctions (Doc. 30)

E-Discovery Issues: Motion for Sanctions
E-discovery Tags: Data Recovery, Sanctions, Spoliation
E-discovery subjects: Hard drive, Surveillance Footage

Advantor Sys. Corp. v. DRS Tech. Servs., Inc.

Case Date: 01/28/2015
Citation: Advantor Sys. Corp. v. DRS Tech. Servs., Inc., No. 6:14–cv–533–Orl–31DAB, 2015 WL 403308 (M.D. Fla. Jan. 28, 2015)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: David A. Baker
Rule(s): Rule 37
Issues:

Plaintiff moved for sanctions against Defendant for spoliation of evidence, alleging bad faith.

Resolution:

The Court denied Plaintiff’s motion for sanctions. Sanctions were not warranted because there was no showing that the destroyed evidence was critical to litigation, as the Court determined there was “no real likelihood” that essential files were on the computer at issue.

Relevant Documents:

Motion for Sanctions for Spoliation of Evidence (Doc. 40)

Motion to Compel (Doc. 47)

Response in Opposition to Motion for Sanctions (Doc. 56)

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

Order (Doc. 79)

E-Discovery Issues: Motion for Sanctions
E-discovery Tags: Possession or Control, Preservation and Collection, Sanctions, Spoliation
E-discovery subjects: Computer, Hard drive

Truesdell v. Thomas

Case Date: 04/30/2015
Citation: Truesdell v. Thomas, No. 5:13–cv–552–Oc–10PRL, 2015 WL 2022991 (M.D. Fla. Apr. 30, 2015)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Philip R. Lammens
Rule(s): Rule 26; Rule 34
Issues:

Plaintiff claimed a violation of her federal privacy rights under the Driver’s Privacy Protection Act of 1994 (DPPA). Plaintiff moved to compel the production of ESI from Defendant Thomas’ Driver and Vehicle Information Database (DAVID) usage history, despite being provided such information in printed paper format, alleging that the paper production was not reasonably usable.

Resolution:

The Court denied Plaintiff’s motion to compel. Defendant Thomas provided the information in printed paper format, and Plaintiff could not prove that the information was overly burdensome, as only a limited time frame was relevant to Plaintiff’s case in particular. Further, Plaintiff should have subpoenaed the Department of Highway Safety and Motor Vehicles (DHSMV) if she wanted the electronic data, as the disputed data originated from the DHSMV.

Relevant Documents:

Motion to Compel Production of ESI (Doc. 72)

Response in Opposition to Motion to Compel Production of ESI (Doc. 84)

Reply in Support of Motion to Compel Production of ESI (Doc. 90) 

Order (Doc. 94)

E-Discovery Issues: Motion to Compel
E-discovery Tags: Form of Production, Metadata, Possession or Control, Privacy, Relevancy
E-discovery subjects: Database

Davenport v. State Farm Mut. Auto. Ins. Co.

Case Date: 02/21/2012
Citation: Davenport v. State Farm Mut. Auto. Ins. Co., CASE NO. 3:11-cv-632-J-JBT, 2012 WL 555759 (M.D. Fla. Feb. 21, 2012)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Joel B. Toomey
Rule(s): Rule 26
Issues:

Defendant moved to compel discovery of Plaintiff’s social media photos and devices used to access social media. Plaintiff objected, contending that the requests were not reasonably calculated to lead to the discovery of admissible evidence, and that the requests were overbroad and invaded Plaintiff’s privacy.

Resolution:

The Court granted Defendant’s motion in part, and denied it in part. The Court granted the motion to the extent that it required Plaintiff to produce all photographs depicting her on social media after the date of the accident, since there was no general expectation of privacy in social media posts. The Court denied the motion to the extent that it requested access to Plaintiff’s devices used to access social media, as the request amounted to nothing more than a fishing expedition.

Relevant Documents:

Motion to Compel (Doc. 22)

Response in Opposition to Motion to Compel (Doc. 25)

Order on Motion to Compel (Doc. 30)

E-Discovery Issues: Admissibility, Motion to Compel, Production Request
E-discovery Tags: Possession or Control, Preservation and Collection, Privacy, Relevancy
E-discovery subjects: Cell phone, Computer, Social Media

Palma v. Metro PCS Wireless, Inc.

Case Date: 04/29/2014
Citation: Palma v. Metro PCS Wireless, Inc., 18 F. Supp. 3d 1346 (M.D. Fla. 2014)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Mark A. Pizzo
Rule(s): Rule 26
Issues:

Defendant requested production of Plaintiffs’ social media posts to discover information about hours worked in a Fair Labor Standards Act (FLSA) claim, and Plaintiffs objected that the production request was overbroad.

Resolution:

The Court denied Defendant’s motion to compel. Defendant’s request was overbroad and not reasonably likely to lead to the discovery of admissible evidence. Defendant sought several years worth of social media posts and messages, and the request had no direct bearing on whether an employee was exempted under the FLSA. Defendant therefore failed to meet the Rule 26(b)(1) threshold requirement.

Relevant Documents:

Motion to Compel (Doc. 204)

Response in Opposition to Motion to Compel (Doc. 220)

Order on Motion to Compel (Doc. 225)

E-Discovery Issues: Admissibility, Motion to Compel, Production Request
E-discovery Tags: Possession or Control, Privacy, Relevancy
E-discovery subjects: Social Media

Beswick v. Nw. Med. Ctr., Inc.

Case Date: 11/03/2011
Citation: Beswick v. Nw. Med. Ctr., Inc., No. 07-020592 CACE (03), 2011 WL 7005038 (Fla. 17th. Cir. Ct. Nov. 3, 2011)
Court Type: Florida State Court
Court: Circuit Court
Judge: Judge: Mily Rodriguez Powell
Issues:

Defendants moved to compel discovery of Plaintiffs’ social media accounts. Plaintiffs objected, alleging the discovery order was overbroad and not reasonably calculated to lead to the discovery of admissible evidence.

Resolution:

The Court granted Defendants’ discovery request. Content shared by Plaintiffs was clearly relevant to their claim of noneconomic damages, and Plaintiffs had no expectation of privacy in social media posts that could be freely copied and disseminated by others.

E-Discovery Issues: Admissibility, Motion to Compel, Production Request
E-discovery Tags: Possession or Control, Preservation and Collection, Privacy, Privilege, Relevancy
E-discovery subjects: Social Media

Nucci v. Target Corp.

Case Date: 01/07/2015
Citation: Nucci v. Target Corp., 162 So. 3d 146 (Fla. 4th DCA 2015)
Court Type: District Court of Appeal
Court: Fla. 4th DCA
Judge: Judge: Robert M. Gross
Rule(s): Fla. R. Civ. P. 1.280; Fla. R. Civ. P. 1.350
Issues:

Plaintiff petitioned to quash a discovery order compelling discovery of Facebook photographs, alleging the request was overbroad and constituted an invasion of privacy.

Resolution:

The Court denied Plaintiff’s petition, because the discovery order was not a departure from the essential requirements of law. The information sought from Plaintiff’s social media accounts was highly relevant to the case, and Plaintiff had limited privacy interests in photographs posted on social media. Further, the order was not overbroad, as it sought photographs from a limited two-year time frame that were easily accessible and not a burden to produce.

Relevant Documents:

Decision

E-Discovery Issues: Admissibility, Discovery Order, Motion to Compel, Production Request
E-discovery Tags: Privacy, Privilege, Relevancy
E-discovery subjects: Cell phone, Photographs, Social Media

Antico v. Sindt Trucking, Inc.

Case Date: 10/13/2014
Citation: Antico v. Sindt Trucking, Inc., 148 So. 3d 163 (Fla. 1st DCA 2014)
Court Type: District Court of Appeal
Court: Fla. 1st DCA
Judge: Judge: Timothy D. Osterhaus
Rule(s): Fla. R. Civ. P. 1.280
Issues:

Following a wrongful death lawsuit, the trial court ordered Petitioner to allow Respondent to examine the contents of a cell phone from the day of the accident, and Petitioner filed a writ of certiorari.

Resolution:

The Court denied Petitioner’s writ. The discovery order allowed for a limited supervised search and carefully balanced the privacy interests of Petitioner. Further, there was specific corroborating evidence that information from the cell phone would be pertinent to the case, as there were several witnesses and a statement from an officer that the cell phone was being used around the time of the accident.

Relevant Documents:

Decision

E-Discovery Issues: Admissibility, Discovery Order
E-discovery Tags: Forensic Analysis/Examination, Mirror Imaging, Possession or Control, Preservation and Collection, Privacy, Relevancy, Sources of ESI
E-discovery subjects: Cell phone, Email, GPS Device, Hard drive, Phone records, Social Media, Text message

Nationwide Mut. Fire Ins. Co. v. Darragh

Case Date: 06/08/2012
Citation: Nationwide Mut. Fire Ins. Co. v. Darragh, 95 So. 3d 897 (Fla. 5th DCA 2012)
Court Type: District Court of Appeal
Court: Fla. 5th DCA
Judge: Judge: C. Alan Lawson
Issues:

Whether trial court erred in permitting testimony and admitting printed copies of pages of a government website into evidence.

Resolution:

The Court held that the information and printed copies from the government website were not admissible, as they did not fall within the public records hearsay exception and they were not subject to judicial notice.

Relevant Documents:

Appellant’s Reply Brief

Appellee’s Answer Brief

Initial Brief on Merits

Decision

E-Discovery Issues: Admissibility
E-discovery Tags: Form of Production
E-discovery subjects: Screenshot

Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co.

Case Date: 10/07/2009
Citation: Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., 20 So. 3d 952 (Fla. 4th DCA 2009)
Court Type: District Court of Appeal
Court: Fla. 4th DCA
Judge: Judge: Carole Y. Taylor
Rule(s): Fla. R. Civ. P. 1.540
Issues:

Plaintiff sought a new trial, alleging Defendant committed fraud upon the court in pre-trial sanction hearings.

Resolution:

The Court affirmed the trial court’s denial of Plaintiff’s motion. Any fraud upon the court in pre-trial sanction hearings would not have affected the actual outcome of the trial, as the alleged fraud did not relate to Plaintiff’s failure to prove damages. Therefore, the trial court did not abuse its discretion in denying Plaintiff’s motion.

Relevant Documents:

Decision

E-Discovery Issues: Motion for New Trial
E-discovery Tags: Data Backup, Possession or Control, Preservation and Collection, Sanctions
E-discovery subjects: Backup Tapes, Email

League of Women Voters of Fla. v. Detzner

Case Date: 07/09/2015
Citation: League of Women Voters of Fla. v. Detzner, 172 So. 3d 363 (Fla. 2015)
Court Type: Florida State Court
Court: Florida Supreme Court (Fla.)
Judge: Justice: Barbara J. Pariente
Issues:

Whether unconstitutional partisan intent existed in the legislature’s redistricting plan.

Resolution:

The Court held that the trial court was justified in drawing an adverse inference against the legislature, and affirmed a finding of unconstitutional partisan intent. The legislature systematically deleted emails and other communications regarding redistricting despite knowing for several years that litigation was a virtual certainty.

Relevant Documents:

Opinion

E-Discovery Issues: Adverse Inference
E-discovery Tags: Preservation and Collection, Sanctions, Spoliation
E-discovery subjects: Email

Silkworth v. City of Boca Raton

Case Date: 11/07/2016
Citation: Silkworth v. City of Boca Raton, Case No. 2013CA013276, 2016 Fla. Cir. LEXIS 4645 (Fla. 15th Cir. Ct. Nov. 7, 2016)
Court Type: Florida State Court
Court: Circuit Court
Judge: Circuit Judge: Meenu Sasser
Rule(s): Fla. R. Civ. P. 1.380
Issues:

Plaintiff moved for adverse inference sanctions against Defendant. The issue was whether an adverse inference sanction was appropriate when Defendant failed to preserve and produce certain surveillance footage.

Resolution:

The Court granted Plaintiff’s motion for sanctions in the form of adverse inferences. Defendant had a duty to preserve the surveillance footage since litigation was reasonably foreseeable, and the footage at issue was crucial to Plaintiff’s prima facie case.

E-Discovery Issues: Adverse Inference, Motion for Sanctions
E-discovery Tags: Data Retention, Preservation and Collection, Sanctions, Spoliation
E-discovery subjects: Surveillance Footage

Holland v. Barfield

Case Date: 05/07/2010
Citation: Holland v. Barfield, 35 So. 3d 953 (Fla. 5th DCA 2010)
Court Type: District Court of Appeal
Court: Fla. 5th DCA
Judge: Judge: Jay P. Cohen
Rule(s): Fla. R. Civ. P. 1.280; Fla. R. Civ. P. 1.350
Issues:

The trial court compelled Petitioner to produce hard drives and SIM cards in her possession, and Petitioner sought a writ of certiorari, alleging that the order gave Respondent access to potentially privileged and/or private materials, and did not allow her to review the materials first before turning them over to Respondent.

Resolution:

The Court quashed the trial court’s order. The order did not protect against potentially confidential or privileged information, and allowed Respondent unfettered access to Petitioner’s information, thereby causing irreparable harm.

Relevant Documents:

Decision

E-Discovery Issues: Discovery Order, Motion to Compel, Protective Order
E-discovery Tags: Possession or Control, Preservation and Collection, Privacy, Privilege, Work Product
E-discovery subjects: Cell phone, Computer, Hard drive, Social Media

Root v. Balfour Beatty Constr. LLC

Case Date: 02/05/2014
Citation: Root v. Balfour Beatty Constr. LLC, 132 So. 3d 867 (Fla. 2d DCA 2014)
Court Type: District Court of Appeal
Court: Fla. 2d DCA
Judge: Judge: Morris Silberman
Rule(s): Fla. R. Civ. P. 1.280
Issues:

Plaintiff sought certiorari review of a discovery order requiring her to produce copies of Facebook posts, alleging that the discovery order departed from the essential requirements of law by requiring discovery that was overbroad and irrelevant.

Resolution:

The Court granted Plaintiff’s certiorari petition, and quashed the order in part. The discovery at issue in the instant case was not related to Plaintiff’s negligence claim, nor to Defendants’ affirmative defenses. The discovery order instead related to Plaintiff’s personal relationships with her family, her mental health, and her previous lawsuits. The discovery order was therefore overbroad and sought irrelevant information not calculated to lead to the discovery of admissible evidence.

Relevant Documents:

Decision

E-Discovery Issues: Discovery Order, Motion to Compel
E-discovery Tags: Possession or Control, Preservation and Collection, Privacy, Relevancy
E-discovery subjects: Social Media

Bernhardt v. Halikoytakis

Case Date: 08/24/2012
Citation: Bernhardt v. Halikoytakis, 95 So. 3d 1006 (Fla. 2d DCA 2012)
Court Type: District Court of Appeal
Court: Fla. 2d DCA
Judge: Associate Judge: Michael E. Raiden
Issues:

Appellants appealed the trial court’s granting of a motion for summary judgment. The issue was whether genuine issues of material fact existed.

Resolution:

The Court reversed the trial court’s decision and remanded the case. It held that genuine issues of material fact existed in determining negligence for Appellant’s fall, and that the trial court’s treatment of the Google Earth photograph as conclusive evidence deciding the case was erroneous.

Relevant Documents:

Decision

E-Discovery Issues: Motion for Summary Judgment
E-discovery subjects: Satellite Photograph

United States v. Odoni

Case Date: 01/13/2015
Citation: United States v. Odoni, 782 F.3d 1226 (11th Cir. 2015)
Court Type: Federal Circuit Court
Court: 11th Circuit Court of Appeals (11th Cir.)
Judge: Circuit Judge: Susan H. Black
Rule(s): 4th Amendment
Issues:

Whether Defendant Gunter had a reasonable expectation of privacy in  electronic data files seized by British authorities, and whether the search and seizure violated his Fourth Amendment rights.

Resolution:

The Court held that Defendant’s Fourth Amendment rights were not violated, and affirmed the denial of Defendant Gunter’s motion to suppress. Because the electronic evidence was seized by a foreign government and then analyzed by foreign government officials prior to being searched by the United States, Defendant Gunter had no reasonable expectation of privacy in the data.

Relevant Documents:

Initial Brief of Appellant

Brief for the United States

Reply Brief of Appellant

Reply Brief of Appellant Paul Gunter 

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Forensic Analysis/Examination, Possession or Control, Preservation and Collection, Privacy, Sources of ESI
E-discovery subjects: Cell phone, Computer, Removable Drive

Murphy v. Roth

Case Date: 10/05/2016
Citation: Murphy v. Roth, 204 So. 3d 43 (Fla. 4th DCA 2016)
Court Type: District Court of Appeal
Court: Fla. 4th DCA
Judge: Associate Judge: Norma S. Lindsey
Issues:

Whether the trial court abused its discretion in denying Plaintiff’s motion for a new trial based on a juror tweeting about the trial and failing to disclose relevant information during voir dire.

Resolution:

The Court held that the statements by the juror on social media were insufficiently prejudicial and that the juror’s failure to disclose during voir dire that he had been in an accident with his father was not material.

Relevant Documents:

Appellant’s Reply Brief

Appellee’s Answer Brief

Initial Brief on Merits

Decision

E-Discovery Issues: Jury Misconduct, Motion for New Trial
E-discovery Tags: Possession or Control
E-discovery subjects: Social Media

Ocwen Loan Servicing, LLC v. Gundersen

Case Date: 09/28/2016
Citation: Ocwen Loan Servicing, LLC v. Gundersen, 204 So. 3d 530 (Fla. 4th DCA 2016)
Court Type: District Court of Appeal
Court: Fla. 4th DCA
Judge: Judge: Spencer D. Levine
Issues:

Whether the trial court abused its discretion in denying evidence under the business record hearsay exception.

Resolution:

The Court held that the trial court did abuse its discretion in denying evidence under the business records exception. The witness demonstrated knowledge of the company’s records process, and the witness’ testimony further demonstrated the trustworthiness of the records. As such, the trial court should have admitted the records as evidence under the business record hearsay exception.

Relevant Documents:

Appellant’s Reply Brief

Appelle’s Answer Brief

Initial Brief on Merits

Decision

E-discovery Tags: Preservation and Collection

Kassem v. Martin

Case Date: 12/20/2017
Citation: Kassem v. Martin, Case No: 5:15–cv–623–Oc–30PRL, 2017 WL 6512549 (M.D. Fla. Dec. 20, 2017)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Philip R. Lammens
Issues:

Ahead of sanctions hearings, Plaintiff moved to dismiss or deny potential sanctions and Defendant moved to review the content of an email account.

Resolution:

The Court denied Plaintiff’s motion to dismiss or deny potential sanctions, as Plaintiff had access to Defendant Connor’s personal email and shared the contents of the email with others, including Plaintiff’s paralegal. The Court found this conduct sanctionable. Additionally, the Court granted Defendant’s motion to review the contents of an email account since Plaintiff failed to establish attorney-client privilege, and any potential attorney-client privilege was waived when a third party not part of the litigation team received communications.

Relevant Documents:

Motion to Review the Content of Email Account (Doc. 165)

Response in Opposition to Examine Email Account (Doc. 172)

Order on Motion to Examine (Doc. 173)

E-Discovery Issues: Motion for Sanctions
E-discovery Tags: Communication/Cooperation, Email, Possession or Control, Privilege, Sanctions
E-discovery subjects: Email

United States v. Rousseau

Case Date: 10/19/2015
Citation: United States v. Rousseau, 628 F. App'x 1022 (11th Cir. 2015) (per curiam)
Court Type: Federal Circuit Court
Court: 11th Circuit Court of Appeals (11th Cir.)
Judge: Circuit Judge: Per Curiam
Rule(s): 4th Amendment
Issues:

Defendant filed a motion to suppress, which was denied by the district court. Defendant alleged the search warrant was unconstitutionally overbroad, lacking required particularity.

Resolution:

The Court held that the district court properly denied the motion to suppress. The warrant sufficiently detailed the items to be seized, and was as specific as it could be under the circumstances, as the government could not know which devices contained the incriminating evidence.

Relevant Documents:

Reply Brief of Alexander Rousseau

Opinion

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: IP Address, Possession or Control, Preservation and Collection, Sources of ESI
E-discovery subjects: Cell phone, Computer, Hard drive, Internet usage, P2P Network

United States v. Joyner

Case Date: 12/02/2015
Citation: United States v. Joyner, CASE NO: 2:15-cr-29-FtM-29MRM, 2015 WL 7752874 (M.D. Fla. Dec. 2, 2015)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: John E. Steele
Rule(s): 4th Amendment
Issues:

Defendant moved to suppress evidence found during a traffic stop. The issue was whether the initial traffic stop and subsequent search and inventory of the vehicle violated Defendant’s Fourth Amendment rights.

Resolution:

The Court denied Defendant’s motion to suppress. Defendant was lawfully stopped for violating traffic laws, and the subsequent arrest for driving on a suspended license allowed authorities to search and inventory Defendant’s vehicle. Defendant’s belongings were then impounded, and a Judge granted a search warrant with sufficient particularity to look through various suspicious belongings. Therefore, there was no violation of Defendant’s Fourth Amendment rights.

Relevant Documents:

Motion to Suppress Evidence (Doc. 30)

Response in Opposition to Motion to Suppress (Doc. 31) 

Supplemental Memorandum in Support of Motion to Suppress (Doc. 49)

Order on Motion to Express (Doc. 69)

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Possession or Control, Preservation and Collection, Sources of ESI
E-discovery subjects: Cell phone, Computer, Hard drive, Removable Drive

United States v. Aldissi

Case Date: 01/23/2015
Citation: United States v. Aldissi, No. 8:14–cr–217–T–33EAJ, 2015 WL 1268277 (M.D. Fla. Jan. 23, 2015)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Elizabeth A. Jenkins
Rule(s): 4th Amendment; Fed. R. Crim. P. 41
Issues:

Defendant filed a motion to suppress, alleging both the initial search warrant the supplemental search warrant were facially deficient and failed to establish probable cause.

Resolution:

The Court adopted the Magistrate’s Report and Recommendation. The Court held that since probable cause was established by the first search warrant and the supplemental search warrant incorporated the initial search warrant, the supplemental search warrant additionally had probable cause. Further, search warrants do not need to include search protocols, so the lack of search protocols included in the search warrant was not an issue.

Relevant Documents:

Motion to Suppress (Doc. 47)

Response in Opposition to Motion to Suppress (Doc. 54)

Reply in Support of Motion to Suppress (Doc. 75)

Order on Motion to Suppress (Doc. 172)

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Preservation and Collection, Sources of ESI
E-discovery subjects: Computer, Hard drive, Removable Drive, SD card

Knight v. State

Case Date: 12/22/2014
Citation: Knight v. State, 154 So. 3d 1157 (Fla. 1st DCA 2014)
Court Type: District Court of Appeal
Court: Fla. 1st DCA
Judge: Judge: Ronald V. Swanson
Issues:

Defendant moved to suppress evidence obtained through an extra-jurisdictional investigation and search of his home computer.

Resolution:

The Court upheld the denial of Defendant’s motion to suppress. Defendant shared child pornography and made it accessible outside of Atlantic Beach, making the initial investigation in Neptune Beach legitimate. Once Detective Pegram found out Defendant was in another jurisdiction, she obtained the cooperation of the Atlantic Beach Police Department, which allowed her to continue the investigation without any jurisdictional concerns.

Relevant Documents:

Appellant’s Reply Brief

Appellee’s Answer Brief

Initial Brief on Merits Knight v. State Part 1

Initial Brief on Merits Knight v. State Part 2

Initial Brief on Merits Knight v. State Part 3

Decision

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Hash Value, IP Address, Possession or Control, Preservation and Collection, Sources of ESI
E-discovery subjects: Computer, Internet usage, P2P Network

United States v. Kermali

Case Date: 11/27/2013
Citation: United States v. Kermali, Case No. 6:13-cr-150-Orl-36KRS, 2013 U.S. Dist. LEXIS 178169 (M.D. Fla. Nov. 27, 2013)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Karla R. Spaulding
Issues:

Defendant brought a motion to suppress, alleging that the government’s search warrant was overbroad, that the search warrant lacked probable cause, and that the seizure of certain items exceeded the scope of the search warrant.

Resolution:

The Court denied Defendant’s motion to suppress. The search warrant was drawn as narrowly as possible given the circumstances, and the agents executing the search warrant were properly advised of the scope of the warrant. Further, the search warrant was sufficiently connected to the alleged crime and was supported by probable cause. With respect to items seized exceeding the scope of the warrant, the government interviewed Defendants to ascertain which items were proceeds of the criminal activity, and therefore did not exceed the scope of the search warrant.

Relevant Documents:

Motion to Suppress (Doc. 52)

Response in Opposition to Motion to Suppress (Doc. 58)

Order on Motion to Suppress (Doc. 73)

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: IP Address
E-discovery subjects: Email, Internet usage

United States EEOC v. GMRI, Inc.

Case Date: 11/01/2017
Citation: United States EEOC v. GMRI, Inc., CASE NO. 15-20561-CIV-LENARD/GOODMAN, 2017 WL 5068372 (S.D. Fla. Nov. 1, 2017)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Jonathan Goodman
Rule(s): Rule 37
Issues:

Plaintiff brought against GMRI, Inc. for age discrimination in hiring practices, and eventually filed a motion for spoliation and sanctions. The issue was whether spoliation sanctions were appropriate.

Resolution:

After considering EEOC’s motion for spoliation and FRCP Rule 37 sanctions, the Court rejected GMRI’s position that it was not under a duty to preserve documents and ESI for any location other than one restaurant, but declined to authorize the permissible inference type of sanction because the EEOC had not established that the missing evidence was crucial to its case or that the company acted to deprive the EEOC of the information. Further, the Court held the EEOC could present evidence of the missing/destroyed evidence to the jury and argue that GMRI acted in bad faith, leading to the possible inference that the loss of ESI was unfavorable to GMRI.

Relevant Documents:

Motion for Spoliation (Doc. 246)

Response in Opposition to Motion for Spoliation (Doc. 259) 

Reply in Support of Motion for Spoliation (Doc. 260)

Order on Motion for Sanctions (Doc. 329)

E-Discovery Issues: Adverse Inference, Litigation Hold, Motion for Sanctions, Motion for Spoliation, Preservation, Production Request
E-discovery Tags: Communication/Cooperation, De-Duplication, Email, Preservation and Collection, Records Retention Policies, Sanctions, Spoliation
E-discovery subjects: Email

Nock v. State

Case Date: 02/15/2017
Citation: Nock v. State, 211 So. 3d 321 (Fla. 4th DCA 2017)
Court Type: District Court of Appeal
Court: Fla. 4th DCA
Judge: Judge: Melanie G. May
Rule(s): 4th Amendment
Issues:

The Defendant filed a motion to suppress, challenging the admissibility of real time cell site location information.

Resolution:

The Court denied the motion. Law enforcement officials obtained a valid warrant to locate the Defendant.

Relevant Documents:

Appellant’s Reply Brief

Appellee’s Answer Brief

Initial Brief on Merits

Decision

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Cell Site Location Information (CSLI), Preservation and Collection
E-discovery subjects: Cell phone, Pen register, Surveillance Footage, Trap and trace device

Herring v. State

Case Date: 05/22/2015
Citation: Herring v. State, 168 So. 3d 240 (Fla. 1st DCA 2015)
Court Type: District Court of Appeal
Court: Fla. 1st DCA
Judge: Judge: L. Clayton Roberts
Rule(s): 4th Amendment
Issues:

Defendant file a motion to suppress, alleging the State violated his Fourth Amendment rights through the warrantless possession of real time cell site location information (CSLI).

Resolution:

The Court reversed the trial court’s ruling, and held that Defendant’s Fourth Amendment rights were violated. The Court stated there is an expectation of privacy in cell site location information, as evidenced by the recent Tracey Florida Supreme Court case. Because there was never any binding precedent stating that the usage of cell site location information did not violate privacy, the good faith exception did not apply. Further, although exigent circumstances existed for the cell location tracking, the State had time to get a warrant, which made the exigent circumstances exception non-applicable.

Relevant Documents:

Appellant’s Reply Brief

Appellee’s Answer Brief

Initial Brief on Merits

Decision

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Cell Site Location Information (CSLI), Preservation and Collection
E-discovery subjects: Cell phone

United States v. Stirling

Case Date: 06/06/2012
Citation: United States v. Stirling, CASE NO. 11-20792-CR-ALTONAGA, 2012 WL 12926045 (S.D. Fla. June 6, 2012)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal District Judge: Cecilia M. Altonaga
Rule(s): Fed. R. Crim. P. 16; Fed. R. Crim. P. 33; Rule 34
Issues:

Defendant moved for a new trial, alleging that the government’s withholding of a Skype chat log fundamentally impacted the fairness of his trial. The issue was whether the government complied with its discovery obligations by only providing Defendant a mirror image of his laptop hard drive.

Resolution:

The Court granted Defendant’s motion for a new trial, and held that the government never disclosed the incriminating Skype chat logs to Defendant, as the government did not inform Defendant either of their existence or their ability to be extracted from Defendant’s laptop computer. Further, the government did not turn over the Skype communication logs until the morning of their expert’s testimony. Although the government produced the necessary electronically stored information, it did so in a manner that would have required Defendant to use a forensic expert to uncover the information it planned using at trial, and therefore fundamentally impacted the fairness of Defendant’s trial.

Relevant Documents:

Motion for New Trial (Doc. 199)

Response in Opposition to Motion for New Trial (Doc. 204)

Reply in Support of Motion for New Trial (Doc. 207)

Order on Motion for New Trial (Doc. 214)

 

E-Discovery Issues: Motion for New Trial
E-discovery Tags: Forensic Analysis/Examination, Form of Production, Identical Copies, Mirror Imaging, Possession or Control, Sources of ESI
E-discovery subjects: Computer, Hard drive, Skype

United States v. Tatro

Case Date: 05/31/2016
Citation: United States v. Tatro, Case No. 6:15-cr-176-Orl-37KRS, 2016 WL 3059542 (M.D. Fla. May 31, 2016)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: Roy B. Dalton Jr.
Rule(s): 4th Amendment; 5th Amendment
Issues:

Defendant filed two motions to suppress. In the first motion to suppress, Defendant alleged that the issued search warrant did not cover his cell phone, and therefore the search of his cell phone amounted to a violation of his Fourth Amendment rights. In the second motion to suppress, Defendant alleged that his incriminatory statements were made in a situation where he did not knowingly waive his Miranda rights due to his diminished intellectual capacity, leading to a violation of his Fifth Amendment rights against self-incrimination.

Resolution:

The Court denied both motions to suppress. With respect to Defendant’s Fourth Amendment claim, the search warrant contained language such as “pocket computer” that sufficiently encompassed the search of Defendant’s cell phone. Further, Defendant’s Fifth Amendment claim was similarly without muster, since Defendant’s conduct showed a knowing and intelligent waiver of his Miranda rights.

Relevant Documents:

Motion to Suppress Statements (Doc. 58)

Motion to Suppress Evidence Outside Scope (Doc. 59)

Response to Motion to Suppress (Doc. 69)

Order on Motion to Suppress (Doc. 79)

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: IP Address, Preservation and Collection, Sources of ESI
E-discovery subjects: Cell phone, Computer, SD card

State v. Stahl

Case Date: 12/07/2016
Citation: State v. Stahl, 206 So. 3d 124 (Fla. 2d DCA 2016)
Court Type: District Court of Appeal
Court: Fla. 2d DCA
Judge: Judge: Anthony K. Black
Rule(s): 5th Amendment
Issues:

Defendant was charged with video voyeurism. The issue was whether providing his cell phone passcode was testimonial in nature and subject to Fifth Amendment protection.

Resolution:

The Court disagreed with the trial court, and held that requiring Defendant to give law enforcement the passcode was not testimonial. The State already had a warrant to search Defendant’s cell phone, and compelling Defendant to produce his passcode would not offend the Fifth Amendment, as the State already had independent evidence linking Defendant to the crime. Under the foregone conclusion doctrine, the State knew of the existence of the passcode, that Defendant had knowledge of the passcode, and that the independent evidence was authentic, based on the the self-authenticating nature of technology.

Relevant Documents:

Appellee’s Answer Brief

Initial Appellant Brief on Merits

Decision

E-Discovery Issues: Admissibility, Motion to Compel
E-discovery Tags: Possession or Control, Preservation and Collection, Sources of ESI
E-discovery subjects: Cell phone, Surveillance Footage

In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011

Case Date: 02/23/2012
Citation: In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335 (11th Cir. 2012)
Court Type: Federal Circuit Court
Court: 11th Circuit Court of Appeals (11th Cir.)
Judge: Circuit Judge: Gerald Bard Tjoflat
Rule(s): 5th Amendment
Issues:

Defendant invoked his Fifth Amendment privilege and refused to decrypt hard drives seized by the government. The issue was whether the decryption of a hard drive is testimonial in nature.

Resolution:

The Court held that decrypting and producing information from the hard drives would constitute testimonial evidence entitled to Fifth Amendment protections.  The decryption and production process was a product of Defendant’s mind, and was not merely a physical act. Further, the government could not show that the “foregone conclusion” doctrine applied, as the government did not know exactly what was on the encrypted drives. Because the decryption triggered Fifth Amendment protections, Defendant’s use immunity was not enough to compel him to testify, and he should have been entitled to derivative use immunity as well.

Relevant Documents:

Original Document

E-Discovery Issues: Admissibility, Contempt of Court, Motion to Compel
E-discovery Tags: Form of Production, Possession or Control, Preservation and Collection, Sources of ESI
E-discovery subjects: Computer, Hard drive

United States v. Beckett

Case Date: 03/09/2010
Citation: United States v. Beckett, 369 F. App'x 52 (11th Cir. 2010) (per curiam)
Court Type: Federal Circuit Court
Court: 11th Circuit Court of Appeals (11th Cir.)
Judge: Circuit Judge: Per Curiam
Rule(s): 4th Amendment
Issues:

Defendant moved to suppress information obtained from ISP and phone companies, alleging violations of his Fourth Amendment rights.

Resolution:

The Court affirmed the district court’s denial of motions to suppress. The Court held there was no suppression remedy for a violation of the Electronic Communications Privacy Act (ECPA), and Defendant had no right to privacy in information voluntarily transmitted to third parties. Further, investigators did not exceed the authority of their search warrant in searching Defendant’s computers, as the warrants described with particularity the items to be searched.

Relevant Documents:

Motion to Suppress Evidence (Doc. 13)

Response in Opposition to Motion to Suppress (Doc. 26)

Verdict (Doc. 73)

Objections to PSI and Reasons for Departure and or Variance of His Sentence (Doc. 80)

Initial Brief of Appellant

Brief for the United States

Reply Brief of Appellant

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: IP Address, Preservation and Collection, Sources of ESI
E-discovery subjects: Computer, Internet usage, Phone records

State v. Worsham

Case Date: 03/29/2017
Citation: State v. Worsham, 227 So. 3d 602 (Fla. 4th DCA 2017)
Court Type: District Court of Appeal
Court: Fla. 4th DCA
Judge: Judge: Robert M. Gross
Rule(s): 4th Amendment
Issues:

The State appealed the trial court’s granting of Defendant’s motion to suppress information obtained from a vehicle black box, alleging that the information contained within the black box was not subject to Fourth Amendment protections.

Resolution:

In a matter of first impression in Florida, the Court upheld the trial court’s ruling, and affirmed Defendant’s motion to suppress. The Court found a reasonable expectation of privacy in information from the black box, which contained information that was not held out to the public. Downloading the information from the black box without a warrant and without exigent circumstances thus violated Defendant’s Fourth Amendment rights.

Relevant Documents:

Appellant’s Reply Brief

Appellee’s Answer Brief

Initial Brief on Merits

Decision

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Preservation and Collection, Sources of ESI
E-discovery subjects: Vehicle Black Box

United States v. Madison

Case Date: 02/22/2016
Citation: United States v. Madison, 643 F. App'x 886 (11th Cir. 2016) (per curiam)
Court Type: Federal Circuit Court
Court: 11th Circuit Court of Appeals (11th Cir.)
Judge: Circuit Judge: Per Curiam
Issues:

Defendant moved to suppress cell tower records obtained pursuant to the Stored Communications Act (SCA). Defendant acknowledged that Davis had precluded him from arguing that the cell toward records constituted a search, but instead argued the government failed to meet the prerequisites for the SCA.

Resolution:

The Court held that the exclusionary rule did not apply to non-constitutional violations of law. Although Defendant has certain remedies when the government violates the SCA, a motion to suppress is not one of them.

Relevant Documents:

Initial Brief for Appellant

Brief for the United States

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Preservation and Collection
E-discovery subjects: Cell phone, Phone records

United States v. Ransfer

Case Date: 04/14/2014
Citation: United States v. Ransfer, 749 F.3d 914 (11th Cir. 2015)
Court Type: Federal Circuit Court
Court: 11th Circuit Court of Appeals (11th Cir.)
Judge: Federal District Judge: Michael M. Baylson
Rule(s): 4th Amendment
Issues:

Defendant moved to suppress information obtained from a warrantless placement of a GPS tracking device on a vehicle used in the commission or several robberies. The issue was whether the warrantless placement of the GPS device violated Defendant’s Fourth Amendment rights.

Resolution:

The Court held that the warrantless GPS installation did not violate Defendant’s Fourth Amendment rights. Under Davis, the Court applied the good faith exception to the exclusionary rule, and found that the police acted in good faith reliance on a binding reasonable suspicion precedent when they placed a GPS tracking device on Defendant’s publicly-parked Ford Expedition.

Relevant Documents:

Appellant’s Initial Brief (1)

Appellant’s Initial Brief (2)

Brief of the United States

Appellant’s Reply Brief (1)

Appellant’s Reply Brief (2)

Appellant’s Reply Brief (3)

Opinion

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Preservation and Collection, Sources of ESI
E-discovery subjects: GPS Device

United States v. Davis

Case Date: 05/05/2015
Citation: United States v. Davis, 785 F.3d 498 (11th Cir. 2015)
Court Type: Federal Circuit Court
Court: 11th Circuit Court of Appeals (11th Cir.)
Judge: Circuit Judge: Frank M. Hull
Rule(s): 4th Amendment
Issues:

Defendant argues that his Fourth Amendment rights were violated through the usage of historical cell tower location information.

Resolution:

The Court held the government did not violate Defendant’s Fourth Amendment rights.  The information the government obtained pursuant to the Stored Communications Act (SCA) did not contain any private information from Defendant, and was not Defendant’s information to withhold, since Defendant had no expectation of privacy in a company’s business records.  The government’s SCA order therefore was not a search, and did not violate Defendant’s Fourth Amendment rights. Even assuming the information obtained pursuant to the SCA constituted a search, a balancing of interests supported the government’s SCA order and would not violate the Fourth Amendment.

Relevant Documents:

Brief for Appellant

Brief for the United States

En Banc Brief for Appellant 

En Banc Brief for the United States

Appellant’s Reply Brief

Petitioner’s Supplemental Brief

Opinion

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Cell Site Location Information (CSLI), Preservation and Collection
E-discovery subjects: Cell phone, Phone records

Tracey v. State

Case Date: 10/16/2014
Citation: Tracey v. State, 152 So. 3d 504 (Fla. 2014)
Court Type: Florida State Court
Court: Florida Supreme Court (Fla.)
Judge: Chief Justice (CJ): Jorge Labarga
Rule(s): 4th Amendment
Issues:

Broward County officers obtained an order granting the right to install pen register and “trap and trace devices,” but did not obtain an additional order to track Defendant’s cell site location information. Defendant motioned to suppress, alleging his Fourth Amendment rights were violated.

Resolution:

The Court stated that Defendant’s motion to suppress should have been granted. Although Defendant was using public roads while being tracked with cell site location information, Defendant still had an expectation of privacy. The use of Defendant’s cell location information constituted a search, and probable cause was necessary to obtain the information. Because there was no probable cause for the search, and no warrant was issued based on probable cause, the Court ruled that Defendant’s motion to suppress should be granted.

Relevant Documents:

Opinion

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Cell Site Location Information (CSLI), Preservation and Collection
E-discovery subjects: Cell phone, Pen register, Trap and trace device

United States v. Brooks

Case Date: 01/27/2014
Citation: United States v. Brooks, No. 3:13–cr–58–J–34JRK, 2014 WL 292194 (Jan. 27, 2014)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: James R. Klindt
Rule(s): 4th Amendment
Issues:

Defendant filed a motion to suppress, alleging that: (1) the warrant was overbroad and insufficiently particular, (2) the warrant was executed unreasonably, and (3) the government did not act in good faith in carrying out the warrant.

Resolution:

The Magistrate recommended that the motion to suppress be denied, and the District Judge accepted. The warrant was not overbroad nor insufficiently particular, as the warrant identified the exact material to be searched for on Defendant’s computer, and the discovery of some innocuous electronic information was inevitable. Further, the warrant was executed reasonably because there was no evidence the five month time period to search Defendant’s computer was purposeful or non-diligent. Additionally, the warrant was not so facially deficient as to put the government on notice that it was invalid, so Defendant’s good faith argument was unsuccessful.

Relevant Documents:

Motion to Suppress (Doc. 39)

Response in Opposition to Motion to Suppress (Doc. 53) 

Report and Recommendations (Doc. 72)

Objections to Report and Recommendations (Doc. 75)

Notice or No Objection (Doc. 76)

Order Adopting Report and Recommendations (Doc. 83)

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: IP Address, Preservation and Collection, Sources of ESI
E-discovery subjects: Computer, Hard drive

United States v. Conrad

Case Date: 08/07/2013
Citation: United States v. Conrad, No. 3:12–cr–134–J–34TEM, 2013 WL 4028273 (M.D. Fla. Aug. 7, 2013)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Thomas E. Morris
Rule(s): 4th Amendment
Issues:

Defendant filed a motion to suppress, alleging that: (1) the warrant was overbroad and insufficiently particular, (2) the warrant was executed unreasonably, and (3) the government did not act in good faith in carrying out the warrant.

Resolution:

The Magistrate recommended that Defendant’s motion to suppress be denied, and the District Judge agreed. The scope of  the warrant was sufficiently limited and not overbroad. Additionally, the warrant was not executed unreasonably, as there was no evidence that the five months it took to analyze Defendant’s electronic devices was unnecessary. Further, the government acted in good faith, since the warrant was not so facially deficient as to place notice on the government that it was not valid.

Relevant Documents:

Motion to Suppress (Doc. 43)

Response in Opposition to Motion to Suppress (Doc. 54)

Report and Recommendations on Motion to Dismiss (Doc. 85)

Objections to Report and Recommendations (Doc. 88)

Order on Motion to Suppress (Doc. 97)

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: IP Address, Mirror Imaging, Preservation and Collection, Sources of ESI
E-discovery subjects: Computer, Hard drive

United States v. Durdley

Case Date: 03/11/2010
Citation: United States v. Durdley, No. 1:09–cr–00031–MP–AK, 2010 WL 916107 (N.D. Fla. Mar. 11, 2010)
Court Type: Federal District
Court: Northern District of Florida (N.D. Fla.)
Judge: Federal District Judge: Maurice M. Paul
Rule(s): 4th Amendment
Issues:

Defendant filed a motion to suppress evidence obtained from a thumb drive left attached to a common area computer. The issue was whether a supervisor’s search of Defendant’s thumb drive implicated Defendant’s Fourth Amendment rights.

Resolution:

The Court denied Defendant’s motion to suppress. The Defendant left his thumb drive in computer at work that was usable by all. Defendant’s supervisor’s search of the thumb drive was not done in an investigatory manner, and the supervisor was in no way searching for evidence to be used in criminal proceedings. Therefore, there was no violation of Defendant’s Fourth Amendment rights, and the information reported to law enforcement authorities provided a substantial basis for a probable cause warrant.

Relevant Documents:

Motion to Suppress (Doc. 21)

Response in Opposition to Motion to Suppress (Doc. 27)

Order on Motion to Suppress (Doc. 34)

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Possession or Control, Preservation and Collection, Privacy, Sources of ESI
E-discovery subjects: Computer, Photographs, Removable Drive

United States v. Caswell

Case Date: 07/11/2017
Citation: United States v. Caswell, CASE NO: 2:16-cr-134-FtM-29MRM, 2017 WL 3600940 (M.D. Fla. July 11, 2017)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Mac R. McCoy
Rule(s): 4th Amendment, Fed. R. Crim. P. 41
Issues:

Whether the Network Investigative Technique (NIT) warrant violated Defendant’s Fourth Amendment rights, and whether the NIT warrant was within the scope of the Magistrate’s power.

Resolution:

The Magistrate recommended the motion to suppress be denied. The NIT warrant had been upheld in other courts, and the NIT clearly described the place to be search and items to be seized, thus satisfying the particularity requirement of the Fourth Amendment. Further, Fed. R. Crim. P. 41(b)(4) allows magistrate judges to issue warrants for the installation of a “tracking device,” and the NIT was correctly classified as a tracking device.

Relevant Documents:

Motion to Suppress (Doc. 17)

Response in Opposition to Motion to Suppress (Doc. 22)

Order on Motion to Suppress (Doc. 40)

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: IP Address, Preservation and Collection, Privacy, Sources of ESI
E-discovery subjects: Computer, Internet usage, Network Investigative Technique (NIT), Servers

United States v. Blessinger

Case Date: 12/16/2016
Citation: United States v. Blessinger, CASE NO. 16-10017-CR-MARTINEZ/SNOW, 2016 WL 8317038 (S.D. Fla. Dec. 16, 2016)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Lurana S. Snow
Issues:

Defendant moved to suppress location information obtained from a satellite phone without a warrant.

Resolution:

The Magistrate Judge recommended that the motion to suppress be denied, as Defendant was on notice that his satellite phone location information was capable of being tracked.

Relevant Documents:

Motion to Suppress (Doc. 76) 

Supplemental Memorandum in Support of Motion to Suppress Evidence (Doc. 92)

Response in Opposition to Motion to Suppress (Doc. 96)

Order on Motion to Suppress (Doc. 120)

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Cell Site Location Information (CSLI), Preservation and Collection, Privacy, Sources of ESI
E-discovery subjects: GPS Device, Pen register, Satellite Phone

State v. K.C.

Case Date: 12/07/2016
Citation: State v. K.C., 207 So. 3d 951 (Fla. 4th DCA 2016)
Court Type: District Court of Appeal
Court: Fla. 4th DCA
Judge: Judge: Martha C. Warner
Rule(s): 4th Amendment
Issues:

The State searched an abandoned, password-protected cellphone without a warrant, and Defendant filed a motion to suppress. The issue was whether the search violated Defendant’s Fourth Amendment rights.

Resolution:

The Court affirmed Defendant’s motion to suppress. The Court determined that a warrant was required to search a password-protected phone even if it was abandoned, due to the amount of information stored in a cell phone and the expectation of privacy in that information.

Relevant Documents:

(Access to the case is confidential so the Briefs are unavailable)

Decision

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Preservation and Collection, Privacy, Sources of ESI
E-discovery subjects: Cell phone

Smallwood v. State

Case Date: 05/02/2013
Citation: Smallwood v. State, 113 So. 3d 724 (Fla. 2013)
Court Type: Florida State Court
Court: Florida Supreme Court (Fla.)
Judge: Justice: R. Fred Lewis
Rule(s): 4th Amendment
Issues:

The case involved a warrantless search of a cell phone incident to an arrest. The lower court certified the question of whether a police officer was allowed to search through photographs on a cell phone following a valid arrest, even if there was no reasonable belief the cell phone contained any evidence.

Resolution:

The Court determined that it was not allowed. A warrant is required to access and search cell phones.

Relevant Documents:

Opinion

E-Discovery Issues: Admissibility, Motion to Suppress
E-discovery Tags: Preservation and Collection, Sources of ESI
E-discovery subjects: Cell phone

Arthrex, Inc. v. Parcus Med., LLC

Case Date: 06/10/2014
Citation: Arthrex, Inc. v. Parcus Med., LLC, No. 2:10–cv–151–FtM–38DNF, 2014 WL 2742813 (M.D. Fla. June 10, 2014)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: Sheri Polster Chappell
Issues:

Plaintiffs moved for sanctions based on the spoliation of evidence, alleging the deletion of certain electronic evidence on computers, thumb drives, and servers.

Resolution:

The Court denied Plaintiffs’ motion. Because Defendant Parcus attempted to preserve evidence, and because of the age of the computers and hard drives and the time of the alleged deletion of evidence, the Court did not find Defendant acted in bad faith.

Relevant Documents:

Motion for Sanctions Based on Spoliation of Electronic Evidence (Doc. 385)

Response in Opposition to Motion for Sanctions Based on Spoliation (Doc. 488)

Order on Motion for Sanctions (Doc. 495) 

E-Discovery Issues: Litigation Hold, Motion for Sanctions, Motion to Compel
E-discovery Tags: Preservation and Collection, Sanctions, Spoliation
E-discovery subjects: Computer, Hard drive, Servers

Point Blank Sols., Inc. v. Toyobo Am., Inc.

Case Date: 04/05/2011
Citation: Point Blank Sols., Inc. v. Toyobo Am., Inc., No. 09–61166–CIV, 2011 WL 1456029 (S.D. Fla. Apr. 5, 2011)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Jonathan Goodman
Rule(s): Rule 37, Rule 72
Issues:

Plaintiff moved for spoliation sanctions. Plaintiff claimed Defendant destroyed or refused to produce certain email and internal correspondence data.

Resolution:

The Court Denied Plaintiff’s motion. Point Blank failed to meet its burden and establish bad faith on behalf of Defendant in its claim for spoliation sanctions.

Relevant Documents:

Motion for Determination of Spoliation of Evidence (Doc. 118)

Response in Opposition to Motion for Determination of Spoliation of Evidence (Doc. 127)

Reply in Support of Motion for Determination of Spoliation of Evidence (Doc. 131)

Order on Motion to Determine Spoliation of Evidence (Doc. 254)

E-Discovery Issues: Litigation Hold, Motion for Sanctions, Motion for Spoliation
E-discovery Tags: Data Retention, Identical Copies, Preservation and Collection, Relevancy, Sanctions, Spoliation
E-discovery subjects: Email, Spreadsheets

FTC v. First Universal Lending

Case Date: 02/17/2011
Citation: FTC v. First Universal Lending, 773 F. Supp. 2d 1332 (S.D. Fla. 2011)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Robin S. Rosenbaum
Issues:

FTC brought action under the FTC Act and Telemarketing Sales Rule. Defendants filed a Motion to Enjoin Prosecution, alleging the FTC, in bad faith, destroyed computer evidence beneficial to Defendants’ case.

Resolution:

The Court held the FTC was not responsible for spoliation of Defendants’ computer evidence, as there was no direct or circumstantial evidence of bad faith on behalf of the FTC.

Relevant Documents:

Motion to Enjoin Prosecution and/or to Enjoin Prosecution (Doc. 170)

Response in Opposition to Motion to Enjoin Prosecution (Doc. 177)

Reply in Support of Motion to Enjoin Prosecution (Doc. 182)

Order (Doc. 210)

E-Discovery Issues: Motion for Spoliation, Motion to Enjoin Prosecution, Preliminary Injunction
E-discovery Tags: Forensic Analysis/Examination, Mirror Imaging, Preservation and Collection, Sanctions, Spoliation
E-discovery subjects: Computer, Hard drive, Servers, Software

In re Fontainebleau Las Vegas Contract Litig.

Case Date: 01/07/2011
Citation: In re Fontainebleau Las Vegas Contract Litig., No. 09–02106–MD, 2011 WL 65760 (S.D. Fla. Jan. 7, 2011)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Jonathan Goodman
Rule(s): Rule 45
Issues:

Term Lenders filed a Motion for Determination of Waiver of Privilege, seeking clarification as to whether Fontainebleau waived privilege through a delayed and incomplete response to a document subpoena.

Resolution:

Fontainebleau’s voluntary disclosure of privileged or potentially privileged information constituted a waiver of applicable privileges, including any attorney-client privilege, in the documents and data on the documents and accounting servers. Because Fontainebleau prepared a privilege log for the email server, the Judge did not find a privilege waiver for the material on the email server (unless such materials could also be found on one of the other two servers, where there has been a waiver).

Relevant Documents:

Motion for Determination of Waiver of Privilege (Doc. 192)

Response in Opposition to Motion for Determination of Waiver of Privilege (Doc. 194)

Order on Motion for Determination of Waiver of Privilege (Doc. 199)

E-Discovery Issues: Motion to Compel, Motion to Quash, Waiver of Privilege
E-discovery Tags: Clawback, Data Dump, Keyword Search, Privilege, Vendor, Work Product
E-discovery subjects: Email, Servers

Leor Expl. & Prod., LLC v. Aguiar

Case Date: 09/28/2010
Citation: Leor Expl. & Prod., LLC v. Aguiar, Nos. 09–60136–CIV, 09–60683–CIV, 2010 WL 3782195 (S.D. Fla. Sept. 28, 2010)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal District Judge: Patricia A. Seitz
Issues:

This case arose out of a family business dispute. The issue concerns whether the Federal Magistrate Judge’s Report and Recommendation, recommending the granting of a Motion for Sanctions by the Leor Parties against Aguiar as well as a Motion to Hold Aguiar in Contempt, should be adopted.

Resolution:

The Court found that Aguiar violated the Magistrate’s witness tampering and intimidation orders, and was therefore in contempt of Court. The Court also found Aguiar acted in bad faith by hacking into Plaintiff Kaplan’s email, warranting appropriate sanctions.

Relevant Documents:

Motion for Sanctions (Doc. 135)

Response in Opposition to Motion for Sanctions (Doc. 165)

Motion to Hold Agular in Contempt (Doc. 228)

Report and Recommendations (Doc. 400)

Order Adopting Report and Recommendations (Doc. 423)

E-Discovery Issues: Motion for Sanctions
E-discovery Tags: Privilege, Work Product
E-discovery subjects: Email

Managed Care Sols., Inc. v. Essent Healthcare, Inc.

Case Date: 08/23/2010
Citation: Managed Care Sols., Inc. v. Essent Healthcare, Inc., 736 F. Supp. 2d 1317 (S.D. Fla. 2010)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: John J. O'Sullivan
Rule(s): Rule 37
Issues:

Breach of contract action. Plaintiff moved for default judgment, and for spoliation sanctions, alleging Defendant spoliated documents necessary for the resolution of several discovery orders.

Resolution:

Because Plaintiff failed to show through direct or circumstantial evidence that Defendant exhibited bad faith, Plaintiff’s request for the entry of a default judgment against the defendant was denied. Additionally, the Court denied Plaintiff’s request for an adverse jury instruction.

Relevant Documents:

Motion for Sanctions (Doc. 152)

Response in Opposition to Motion for Sanctions (Doc. 171)

Reply in Support of Motion for Sanctions (Doc. 180)

Order on Motion for Sanctions (Doc. 212)

 

E-Discovery Issues: Litigation Hold, Motion for Default Judgment, Motion for Sanctions
E-discovery Tags: Data Retention, Sanctions, Spoliation
E-discovery subjects: Email

Swofford v. Eslinger

Case Date: 09/28/2009
Citation: Swofford v. Eslinger, 671 F. Supp. 2d 1274 (M.D. Fla. 2009)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: Mary S. Scriven
Issues:

§ 1983 claim for use of excessive force and unlawful entry. Plaintiffs moved for spoliation sanctions, alleging Defendants did not properly preserve evidence.

Resolution:

Motion for Spoliation Sanctions granted due to Defendants’ bad faith. The Court issued an adverse inference instruction for the destruction of emails against all Defendants, and a rebuttable presumption in favor of Plaintiffs that the missing deputies’ radios would yield adverse evidence. Additionally, the Court issued an adverse inference instruction against Defendant Remus and Defendant Eslinger for the destruction of Remus’ laptop.

Relevant Documents:

Motion for Sanctions (Doc. 44) 

Response in Opposition to Motion for Spoliation of Evidence (Doc. 46) 

Response in Opposition to Motion for Sanctions (Doc. 50) 

Reply in Support of Motion for Sanctions (Doc. 55) 

Order (Doc. 273) 

E-Discovery Issues: Adverse Inference, Litigation Hold, Motion for Sanctions
E-discovery Tags: Preservation and Collection, Sanctions, Spoliation
E-discovery subjects: Computer, Email

Preferred Care Partners Holding Corp. v. Humana, Inc.

Case Date: 04/09/2009
Citation: Preferred Care Partners Holding Corp. v. Humana, Inc., No. 08-20424-CIV, 2009 WL 982460 (S.D. Fla. Apr. 9, 2009)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Andrea M. Simonton
Rule(s): Rule 16, Rule 37
Issues:

Plaintiffs (PCP) sought damages allegedly from unsuccessful negotiations to sell the business to Humana. PCP filed a motion for sanctions, alleging Humana inappropriately destroyed relevant evidence.

Resolution:

Motion for sanctions granted in part and denied in part. Principles and federal rules for the destruction of evidence applied equally to the destruction of electronic evidence, and the Court therefore allowed sanctions for “grossly negligent discovery conduct.” Plaintiffs allowed to forensically analyze Defendant’s computer system and additional documents, and Defendant was to bear the cost of the added discovery, including attorneys’ fees.

Relevant Documents:

Motion for Sanctions (Doc. 153)

Response in Opposition to Motion for Sanctions (Doc. 163)

Reply in Support of Motion for Sanctions (DOc. 199) 

Order (Doc. 199) 

 

E-Discovery Issues: Confidentiality Agreement, Litigation Hold, Motion for Sanctions
E-discovery Tags: Data Backup, Data Dump, Data Recovery, De-Duplication, Forensic Analysis/Examination, Keyword Search, Metadata, Print and Purge, Privilege, Sanctions
E-discovery subjects: Computer, Email

Procaps S.A. v. Patheon Inc.

Case Date: 03/18/2014
Citation: Procaps S.A. v. Patheon Inc., No. 12–24356–CIV, 2014 WL 1047748 (S.D. Fla. Mar. 18, 2014)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Jonathan Goodman
Rule(s): Rule 37
Issues:

Defendant filed Motion to Compel Plaintiff to propose adequate search terms.

Resolution:

Court ordered Plaintiff’s counsel to obtain appropriate search terms from its key ESI custodians. Costs awarded to defendant, because none of the Rule 37(a) exceptions applied and the law required an award of fees.

Relevant Documents:

Order Granting Motion for Forensic Analysis (Doc. 341) 

Motion to Compel Plaintiff to Propose Adequate Search Terms (Doc. 354)

Memorandum in Support of Motion to Compel Plaintiff to Propose Adequate Search Terms (Doc. 355) 

Response in Opposition to Motion to Compel Adequate Search Terms (Doc. 370) 

Supplement to Response to Motion to Compel Adequate Search Terms (Doc. 372) 

Response to Supplement to Response Motion to Compel Adequate Search Terms (Doc. 386)

Order on Motion to Compel Adequate Search Terms (Doc. 404)

E-Discovery Issues: Litigation Hold, Motion to Compel
E-discovery Tags: Communication/Cooperation, Cost Shifting, Custodian, Forensic Analysis/Examination, Keyword Search, Preservation and Collection
E-discovery subjects: Computer, Email

Seven Seas Cruises S. De R.L. v. V. Ships Leisure Sam

Case Date: 01/19/2011
Citation: Seven Seas Cruises S. De R.L. v. V. Ships Leisure Sam, No. 09–23411–CIV, 2011 WL 181439 (S.D. Fla. Jan. 19, 2011)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Andrea M. Simonton
Rule(s): Rule 34
Issues:

Plaintiff cruise ship owners and/or their agents brought action against Defendants for damages arising out of the alleged failure to provide proper ship maintenance. The issue was whether Plaintiffs’ motion to compel the discovery of electronic information was permissible, as Plaintiffs alleged Defendants did not conduct a proper search nor produce the information in the agreed upon format.

Resolution:

Motion denied in part. The parties’ dispute resulted from the failure to communicate and work together in good faith. The Court would not allow a renewed motion to compel until the parties attempted to resolve dispute without court intervention.

Relevant Documents:

Motion to Compel (Doc. 150)

Response in Opposition to Motion to Compel (Doc. 166)

Reply in Support of Motion to Compel (Doc. 183)

Sur-Reply to Plaintiff’s Reply to Motion to Compel (Doc. 205)

Order (Doc. 249)

E-Discovery Issues: Motion to Compel
E-discovery Tags: Bates Stamping, Boolean Search, Communication/Cooperation, Costs, Custodian, Keyword Search, Sources of ESI, TIFF Images, Vendor
E-discovery subjects: Computer, Email, Software

Seven Seas Cruises S. DE R.L. v. V. Ships Leisure Sam

Case Date: 12/02/2010
Citation: Seven Seas Cruises S. DE R.L. v. V.Ships Leisure Sam, No. 09–23411–CIV, 2010 WL 4982810 (S.D. Fla. Dec. 2, 2010)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Andrea M. Simonton
Rule(s): Rule 34
Issues:

Plaintiff cruise ship owners and/or their agents sued Defendants for damages arising out of Defendants’ alleged failure to provide proper ship management and care. Plaintiff requested documents and filed a Motion to Compel Defendants to conduct discovery of electronically stored information using specific search terms, and seeking production in the specified format.

Resolution:

Motion to compel granted in part, and denied in part. The Court ordered Defendant to conduct another ESI search using Plaintiffs’ suggested search terms and produce all relevant documents in Plaintiff’s requested  format within two weeks.

Relevant Documents:

Motion to Compel (Doc. 149)

Motion to Compel (Doc. 150)

Order (Doc. 164) 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Bates Stamping, Boolean Search, Communication/Cooperation, Costs, Custodian, Keyword Search, Sources of ESI, Vendor, Work Product
E-discovery subjects: Computer, Email, Software

Callaway v. Papa John’s USA, Inc.

Case Date: 10/12/2010
Citation: Callaway v. Papa John's USA, Inc., No. 09–61989–CIV, 2010 WL 4024883 (S.D. Fla. Oct. 12, 2010)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Robin S. Rosenbaum
Rule(s): Rule 26(b)
Issues:

Defendant filed motions to compel discovery responses, and the court assessed the scope of Rule 26(b) and whether Plaintiff was entitled to work product protection.

Resolution:

Defendant’s first motion to compel granted; second motion to compel granted in part and denied in part. Responses received by plaintiffs in connection with the email were discoverable because that information did not “reflect counsel’s opinions or investigative or litigation strategies.” Such responses were factual in nature and not entitled to work product protection.

Relevant Documents:

Motion to Compel (Doc. 49)

Response in Opposition to Motion to Compel (Doc. 60)

Motion to Compel Responses to Second Set of Discovery (Doc. 77) 

Response in Opposition to Motion to Compel (Doc. 78)

Reply in Support of Motion to Compel (Doc. 79)

Order (Doc. 99) 

 

 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Preservation and Collection, Privilege, Work Product
E-discovery subjects: Email, Internet usage

Dolan-Heitlinger v. Nat’l Credit Union Admin.

Case Date: 03/16/2010
Citation: Dolan-Heitlinger v. Nat'l Credit Union Admin., No. 09–10095–CIV, 2010 WL 989236 (S.D. Fla. March 16, 2010)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Andrea M. Simonton
Rule(s): Rule 26(a)
Issues:

Plaintiff claimed a breach of employment contract and a breach of deferred compensation contract. Plaintiff filed multiple motions to compel, seeking documents and better answers to its interrogatories.

Resolution:

Plaintiff’s Motion to Compel Defendant to Comply with sections of the State Court’s Order, and Motion to Compel Defendant to Provide a Better Answer to Interrogatories granted in part.

Relevant Documents:

Motion to Compel (Doc. 15)

Motion to Compel (Doc. 16)

Motion to Compel (Doc. 17) 

Response in Opposition to Motion to Compel (Doc. 24)

Response in Opposition to Motion to Compel (Doc. 25) 

Order (Doc. 32) 

E-Discovery Issues: Motion to Compel
E-discovery Tags: Costs, Privilege, Work Product

Rosenbaum v. Becker & Poliakoff, P.A.

Case Date: 02/23/2010
Citation: Rosenbaum v. Becker & Poliakoff, P.A., No. 08–CV–81004, 2010 WL 623699 (S.D. Fla. Feb. 23, 2010)
Court Type: Federal District
Court: Southern District of Florida (S.D. Fla.)
Judge: Federal Magistrate Judge: Linnea R. Johnson
Rule(s): Rule 26
Issues:

The cause of action arose form a breach of employment and deferred compensation agreement under Employee Retirement Income Security Act (ERISA). The Court had to decide on a number of issues involving relevancy, overbreadth, work product privilege, attorney-client privilege, and other confidentiality concerns in assessing the validity of the Motion to Compel and Motion for Protective Order before the Court.

Resolution:

Motions granted in part and denied in part. The Court ordered old firm to locate documents on its computer system using search terms and email addresses, and to produce them in hard copy or electronic form, whichever was least burdensome.

Relevant Documents:

Motion for Protective Order (Doc. 74)

Motion to Compel (Doc. 78)

Response in Opposition to Motion for Protective Order (Doc. 94)

Response in Opposition to Motion to Compel (Doc. 104)

Order (Doc. 161) 

 

E-Discovery Issues: Motion for Protective Order, Motion to Compel
E-discovery Tags: Data Backup, Data Recovery, Email, Keyword Search, Privilege, Proportionality, Trade Secrets
E-discovery subjects: Email

Se. Mech. Servs., Inc. v. Brody

Case Date: 08/31/2009
Citation: Se. Mech. Servs., Inc. v. Brody, 657 F. Supp. 2d 1293 (M.D. Fla. 2014)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Elizabeth A. Jenkins
Rule(s): Federal Law
Issues:

An employer filed a Motion for Sanctions Due to Spoliation of Evidence against former employees. The Court had to decide whether there was bad faith destruction of evidence on behalf of the employees, and determine the most appropriate sanction.

Resolution:

An adverse inference jury instruction was the most fitting  sanction, due to bad faith on the part of Defendants in wiping information from their electronic devices.

Relevant Documents:

Motion for Spoliation and Order to Show Cause (Doc. 269) 

Supplement to Motion for Sanctions (Doc. 282)

Response to Motion for Sanctions for Spoliation (Doc. 292)

Memorandum in Opposition to Motion of Spoliation (Doc. 293)

Order (Doc. 372)

E-Discovery Issues: Motion for Sanctions
E-discovery Tags: Costs, Forensic Analysis/Examination, Sanctions, Spoliation, Trade Secrets
E-discovery subjects: Calendar, Cell phone, Computer, Email, Enterprise Applications, Phone records, Text message

Bray & Gillespie Mgmt., LLC v. Lexington Ins. Co.

Case Date: 11/16/2009
Citation: Bray & Gillespie Mgmt., LLC v. Lexington Ins. Co., No. 6:07-cv-0222-Orl-35KRS, 2009 WL 5606058 (M.D. Fla. Nov. 16, 2009)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal District Judge: Mary S. Scriven
Rule(s): Rule 37
Issues:

Plaintiffs brought insurance claims against defendant insurer. Insurer moved for sanctions against Plaintiffs, and the Court previously granted the sanctions, awarding additional sanctions against Plaintiffs’ counsel. The issue was whether counsel for the Plaintiffs should have been sanctioned.

Resolution:

The Court quashed the portion of the order finding bad faith on behalf of Plaintiffs’ counsel. The portion of the order dealing with the payment of fees, costs, and expenses affirmed.

Relevant Documents:

Objections to Magistrate Judges Order Finding Bad Faith Conduct (Doc. 500)

Motion for Sanctions (Doc. 526)

Memorandum in Opposition to Motion for Sanctions (Doc. 532)

Order on Motion for Sanctions (Doc. 630)

E-Discovery Issues: Motion for Sanctions
E-discovery Tags: Case Management Report, Metadata, Sanctions, Spoliation, TIFF Images
E-discovery subjects: Hard drive, Software

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co.

Case Date: 03/04/2009
Citation: Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 259 F.R.D. 568 (N.D. Fla. 2009)
Court Type: Federal District
Court: Middle District of Florida (M.D. Fla.)
Judge: Federal Magistrate Judge: Karla R. Spaulding
Rule(s): Rule 34, Rule 37
Issues:

Plaintiffs brought insurance claims against defendant insurer. Insurer moved for sanctions against Plaintiffs, and again moved to compel production of ESI.

Resolution:

The Court granted Defendant Insurer’s motion for sanctions, as Plaintiffs had repeatedly failed to produce ESI in the agreed upon format. Further, the Court, on its own motion, sanctioned Plaintiffs’ attorneys for concealment and misrepresentation in producing the ESI. The Court again granted the motion to compel production of ESI.

Relevant Documents:

Motion for Sanctions (Doc. 202)

Response in Opposition to Motion for Sanctions (Doc. 222) 

Magistrate Order on Motion for Sanctions (Doc. 460) 

E-Discovery Issues: Motion for Sanctions, Motion to Compel
E-discovery Tags: Case Management Report, Metadata, Preservation and Collection, Sanctions, Spoliation, TIFF Images
E-discovery subjects: Hard drive, Software