Forensic Examination of Devices Denied by Court, At Least for Now: eDiscovery Case Law

In Partners Insight, LLC v. Gill, No.: 2:22-cv-739-SPC-KCD (M.D. Fla. Apr. 10, 2023) Florida Magistrate Judge Kyle C. Dudek denied without prejudice plaintiffs’ motion to compel a forensic examination of devices belonging to defendants Jennifer and Steven Gill.

Case Background

In this case alleging breach of contract and misappropriation of trade secrets by the plaintiffs (provide management assistance for optometry practices), the plaintiffs served defendants with a First Request for Production of Documents, which included a request for each defendant to produce any cell phones, computers, and other electronic storage devices from March 1, 2022, to the present, for forensic inspection and imaging. Defense counsel at the time (who subsequently withdrew) seemed amenable to producing various devices and storage media, but no production was ever made. Instead, all but one defendant objected with: “Defendant objects as the devices include confidential business information, propriety information, or trade secrets.”

Judge's Ruling

Beginning his analysis of whether to compel a forensic examination of devices, Judge Dudek stated: “When determining whether a forensic examination is warranted, the Court must weigh the utility of the proposed examination against inherent privacy concerns…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…‘Mere speculation that electronic discovery must exist is insufficient to permit forensic examination of a party’s personal computer or cellphone’.”

Continuing, Judge Dudek stated: “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….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.’”

Applying those parameters to this case, Judge Dudek stated: “Plaintiffs’ motion does not include what is required under the Discovery Handbook. Outside of a few conclusory paragraphs, there is no proposal for the protection of privacy rights or privileged information. That alone precludes awarding such extraordinary relief. But the motion also falls short for a more fundamental reason—it is premature. Plaintiffs seek a forensic examination to discover if Defendants ‘downloaded [files] onto [a] storage device’ or ‘sent confidential information [to] their personal mail accounts.’…But Plaintiffs have not first requested that Defendants voluntarily produce such information. In other words, Plaintiffs have not gone through the discovery process necessary before obtaining the exceptional relief of a forensic examination.”

Judge Dudek added: “Timing aside, there are additional problems with Plaintiffs’ motion that warrant comment. First, Plaintiffs do not identify the expert who will conduct the forensic imaging. Second, Plaintiffs put the onus on Defendants to provide a list of negative search terms…This turns discovery on its head—Defendants have no obligation to formulate search terms or otherwise guess at the information Plaintiffs seek. And finally, Plaintiffs provide no facts from which the Court could even infer that a forensic examination would be appropriate. Instead, Plaintiffs allege ‘upon information and belief’ that Defendants transferred confidential files…At bottom, Plaintiffs’ request is based on ‘mere speculation,’ which is not enough.”

While denying plaintiffs’ motion to compel a forensic examination of devices, Judge Dudek did so without prejudice, stating: “Plaintiffs may refile their motion to compel, if necessary, after further discovery has taken place.”

So, what do you think? If the plaintiffs had done a better job of filing a timely, well considered motion, do you think the motion would have been granted? Please share any comments you might have or if you’d like to know more about a particular topic.

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