Court Orders Defendants to Produce Laptop for Forensic Examination – Again: eDiscovery Case Law
In HealthPlan Servs., Inc. v. Dixit, et al., No.: 8:18-cv-2608-T-23AAS (M.D. Fla. Dec. 19, 2019), Florida Magistrate Judge Amanda Arnold Sansone granted the plaintiff’s motion to order a group of defendants (the “Dixit defendants) to comply with the court’s previous order compelling immediate inspection of a laptop of one of the defendants. Judge Sansone also granted the plaintiff’s motion for fees, sanctions, a jury instruction, and order to show cause why the Dixit defendants should not be held in contempt of court order to the extent that the Dixit defendants were ordered to pay the plaintiff’s reasonable expenses incurred for the meet and confers with the Dixit defendants about this issue and filing its motion. The plaintiff’s requests for additional sanctions, a jury instruction, and an order to show cause were denied without prejudice pending the forensic examination of the laptop.
In this case involving copyright infringement and breach of contract (among other issues), the court granted the plaintiff’s oral motion to compel immediate inspection of defendant Feron Kutsomarkos’s laptop in defendant Rakesh Dixit’s possession on October 16, 2019. The court required Mr. Dixit to turn over the hard drives from Ms. Kutsomarkos’s laptop to his attorneys by October 19, which he did. The court also required the plaintiff to identify an expert and gave the Dixit defendants ten days to object as required by the protective order. Counsel for the Dixit defendants responded by saying “we object to your expert designation in relation to the hard drive matter address in the Order at Doc. 200.”
The plaintiff contended that the Dixit defendants did not provide good cause for objecting to the plaintiff’s selected expert and speculated that the Dixit defendants’ refusal to turn over the hard drive to the expert may be an attempt to cover up spoliation by the Dixit defendants. In response, the Dixit defendants argued the plaintiff’s comments at the October 16 hearing suggested the drives were only to be forensically imaged, even though the plaintiff had stated that it was “creating a forensic image so that we can evaluate the documents that were produced and ensure that they’re properly preserved and that we’ve received the entirety of the documents that we’ve requested”. The Dixit defendants also argued a different legal standard exists for permitting a forensic examination of the hard drives rather than permitting a mere image and cited Garrett v. University of South Florida Board of Trustees, No. 8:17-cv-2874-T-23AAS, 2018 WL 4383054 (M.D. Fla. Sept. 14, 2018) to support that contention.
With regard to the case cited by the Dixit defendants, Judge Sansone stated: “The Dixit defendants’ reliance on Garrett for the legal standard is misplaced. In Garrett, the plaintiff produced the recording sought by the defendant, but the defendant requested a forensic examination to see if there was evidence of an attempt to tamper with the recording…Here, counsel for Ms. Kutsomarkos noted Ms. Kutsomarkos provided pdf versions of documents from the laptop…However, the pdf files scrubbed the metadata from the documents and that metadata should be available on the hard drives…Also, the computer in Garrett was a personal computer, but here the computer was Ms. Kutsomarkos’s business computer and she gave it to Mr. Dixit, her employer.”
Judge Sansone also stated: “Since Ms. Kutsomarkos did not correctly comply with prior discovery requests by producing from the laptop incorrectly formatted documents with limited information, the court determined a forensic examination of the laptop was warranted…Ms. Kutsomarkos also conducted her own search of the emails rather than having an expert or her attorney conduct the search…Also, Mr. Dixit, another defendant, searched and recovered the same files Ms. Kutsomarkos produced in the native format…HealthPlan also conveyed certain documents that should have come from a professional search of the laptop were missing…These factors satisfy exceptional circumstances to warrant a forensic examination. Noting, the cost and burden for the forensic examination is falling on HealthPlan, who wants to confirm everything was turned over to them.”
As a result, Judge Sansone granted the plaintiff’s motions as noted above and denied without prejudice the plaintiff’s additional requests pending the forensic examination of the laptop.
So, what do you think? Did the court go far enough to address the defendant’s discovery failings? Please let us know if any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant.
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