eDiscovery Daily Blog

• June 2, 2015

In Procaps S.A. v. Patheon Inc., 12-24356-CIV-GOODMAN, 2014 U.S. Dist. (S.D. Fla. Apr. 24, 2015), Florida District Judge Jonathan Goodman ordered the deposition of a third-party computer forensic expert, who had previously examined the plaintiff’s computers, to be conducted in part by a Special Master that had been appointed to examine the eDiscovery and forensic issues in the case. The purpose of the ordered deposition was to help the Court decide the issues related to files deleted by the plaintiff and assist the defendant to decide whether or not to file a sanctions motion.

Case Background

Although the plaintiff filed suit in this antitrust case in December 2012, it did not implement a formal litigation hold until after February 27, 2014, when this Court ordered one to be implemented in response to the defendant’s motion. Beyond not implementing a formal hold, the plaintiff’s counsel acknowledged that its document and electronically stored information (“ESI”) search efforts were inadequate. Its US lawyers never traveled to Colombia (where the plaintiff is based) to meet with its information technology team (or other executives) to discuss how relevant or responsive ESI would be located, and it did not retain an ESI retrieval consultant to help implement a litigation hold or to search for relevant ESI and documents. In addition, some critical executives and employees conducted their own searches for ESI and documents without ever seeing the defendant’s document request or without receiving a list of search terms from its counsel.

The plaintiff ultimately agreed to a forensic analysis by an outside vendor specializing in ESI retrieval and the Court appointed a neutral computer forensic expert to analyze the plaintiff’s ESI and later appointed a Special Master to assist the Court with ESI issues. Completed in May 2014,the report, which was “thousands of pages long” from the forensic expert, showed that “nearly 200,000 emails, PDFs, and Microsoft Word, Excel, and PowerPoint files were apparently deleted” and “[i]t appears that approximately 5,700 of these files contain an ESI search term in their title, which indicates that they could have been subject to production in the forensic analysis if they had not been deleted.”

The defendant filed a motion to conduct the deposition of the neutral third-party expert to explain the report and the plaintiff filed an opposing response.

Judge’s Ruling

You’ve got to love an opinion that begins by quoting both eighteenth century English writer Samuel Johnson and the recently departed B.B. King. Judge Goodman began his analysis by referencing Federal Rule of Evidence 706, noting that it “governs court-appointed expert witnesses” and that “Subsection 706(b)(2) provides that such witnesses ‘may be deposed by any party.’” With regard to the plaintiff’s objection that such depositions are not very common, he stated that “regardless of whether depositions of court-appointed neutral experts on computer forensic issues are very common, used occasionally or are actually rare and atypical, they are certainly permissible. As noted, Federal Rule Evidence 706(b)(2) expressly provides for them. Moreover, there are published opinions discussing these types of depositions without critical comment. Perhaps more importantly, district courts have ‘broad discretion over the management of pre-trial activities, including discovery and scheduling.’”

Judge Goodman also rejected the plaintiff’s objection about the purported tardiness of the motion, noting that the forensic analysis took more than a year and was not completed until the first week of April 2015. He stated that “the deposition would undoubtedly be of great help to the Court. If I were to deny the motion, as Procaps urges, then I would be undermining my own ability to grapple with the myriad, thorny issues which will surely arise in the next several weeks or months.

Therefore, the Undersigned hopes to be able to ‘get by with a little help from my [ESI neutral expert] friends’ and is ‘gonna try [to comprehensively and correctly assess the to-be-submitted ESI issues] with a little help from my friends.’ Granting Patheon’s motion will enable the Undersigned to accomplish that goal; denying it would render that specific goal unattainable (and make the ESI spoliation/sanctions/trial evidence/bad faith/significance of missing evidence/prejudice evaluation more difficult).”

As a result, Judge Goodman ordered the deposition of the third-party computer forensic expert to be conducted in part by the Special Master and laid out the procedures for the deposition in his order.

So, what do you think? Was the judge right in ordering the deposition? Please share any comments you might have or if you’d like to know more about a particular topic.

This isn’t the first time we’ve covered this case, click here for a previous ruling we covered back in May 2014.

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