In PARTNERS INSIGHT, LLC v. JENNIFER GILL ET AL., Case No. 2:22-cv-739-SPC-KCD (M.D. Florida, April 10, 2023), before the Court was Plaintiffs’ motion to compel a forensic examination of Defendants’ personal and business electronics.
Plaintiffs were affiliated entities that provided management assistance for optometry practices, which includes running marketing and recruiting campaigns. Defendants Steven and Jennifer Gill worked for the Plaintiffs and separated from Plaintiffs’ employment in April 2022.
Before leaving, Mr. Gill executed several employment agreements that contained confidential and non-competition provisions. Mrs. Gill executed an agreement that contained confidentiality and non-competition provisions.
Plaintiffs claim that the Gills breached their contracts by starting two competing businesses. Plaintiffs also claim that the Gills took “trade secrets and confidential information” before leaving. The Gills and their new businesses were named as Defendants.
Plaintiffs served Defendants with a First Request for Production of Documents. At issue here was Request No. 10, which asked that each Defendant produce any cell phones, computers, and other electronic storage devices from March 1, 2022, for forensic inspection and imaging.
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Discovery into electronically stored information, including forensic examinations, is subject to this general scope of discovery. Fed. R. Civ. P. 34(a); U&I Corp. v. Advanced Med. Design, Inc., 251 F.R.D. 667, 672 (M.D. Fla. Mar. 26, 2008).
When determining whether a forensic examination is warranted, the Court must weigh the utility of the proposed examination against inherent privacy concerns. Bradfield v. Mid-Continent Cas. Co., No. 5:13-CV-222-Oc-10PRL, 2014 WL 4626864, at *4 (M.D. Fla. Sept. 15, 2014).
Also relevant is whether the parties withheld requested discovery, will not search for requested discovery, and the extent to which the parties complied with past discovery requests. Valdes v. Greater Naples Fire Rescue Dist., No. 2:17-CV-417-FtM-29CM, 2018 WL 4281472, at *6 (M.D. Fla. Sept. 7, 2018). “Mere speculation that electronic discovery must exist is insufficient to permit forensic examination of a party’s personal computer or cellphone.” Garrett v. Univ. of S. Fla. Bd. of Trustees, No. 8:17-CV-2874-T-23AAS, 2018 WL 4383054, at *2 (M.D. Fla. Sept. 14, 2018).
The Middle District of Florida Discovery Handbook also covers this topic. It states: “Inspection of an opponent’s computer system is the exception, not the rule and the creation of forensic image backups of computers should only be sought in exceptional circumstances which warrant the burden and cost.” Middle District Discovery 2021 at VIII(E)(3). “A request to image an opponent’s computer should include a proposal for the protection of privacy rights, protection of privileged information, and the need to separate out and ignore non-relevant information.” Id.
Plaintiffs’ motion did not include what was required under the Discovery Handbook. Outside of a few conclusory paragraphs, there was not a proposal for the protection of privacy rights or privileged information. The Court found that alone precluded awarding such extraordinary relief.
The Court also found that the motion fell short for a more fundamental reason – it was premature. Plaintiffs sought a forensic examination to discover if Defendants “downloaded [files] onto [a] storage device or “sent confidential information [to] their personal mail accounts.” But Plaintiffs did not first request that Defendants voluntarily produce such information. In other words, Plaintiffs did not go through the discovery process necessary before seeking the exceptional relief of a forensic examination.
“Courts in this circuit permit forensic examinations where clear evidence exists that the party responding to discovery defaulted on its discovery obligations.” Garrett v. Univ. of S. Fla. Bd. of Trustees, No. 8:17-CV-2874-T-23AAS, 2018 WL 4383054, at *3 (M.D. Fla. Sept. 14, 2018); see also ANZ Advanced Tech., LLC v. Bush Hog, LLC, No. 09-00228-KD-N, 2010 WL 11575131, at *9 (S.D. Ala. May 4, 2010) (permitting forensic examination when party failed to produce relevant documents); Wynmoor Cmty. Council, Inc. v. QBE Ins. Corp., 280 F.R.D. 681, 686 (S.D. Fla. Mar. 5, 2012) (permitting forensic examination when party “undertook no efforts” to produce electronic discovery); Bank of Mongolia v.M&P Glob. Fin. Serv., 258 F.R.D. 514, 517 (S.D. Fla. Apr. 24, 2009) (permitting forensic examination when party failed to produce all responsive documents without valid excuse).
Timing aside, the Court noted there were additional problems with Plaintiffs’ motion.
First, Plaintiffs did not identify the expert who would have conducted the forensic imaging. Second, Plaintiffs placed the onus on Defendants to provide a list of negative search terms. This turned discovery on its head – Defendants had no obligation to formulate search terms or otherwise guess at the information Plaintiffs sought.
Finally, Plaintiffs provided no facts from which the Court could even infer that a forensic examination would be appropriate. Instead, Plaintiffs alleged “upon information and belief” that Defendants transferred confidential files. At bottom, Plaintiffs’ request was based on “mere speculation,” which was not enough.