Digital Assurance Certification, LLC v. Pendolino
6:17-cv-00072
M.D. Fla.Sep 29, 2017Background
- Plaintiff Digital Assurance Certification, LLC (DAC) alleges former employee Alex Pendolino downloaded or accessed DAC’s confidential client files and trade secrets shortly before leaving to work for competitor Lumesis, and that Lumesis thereafter developed a similar "Summary Findings Page."
- DAC served a broad Rule 45 subpoena on nonparty Lumesis seeking forensic images, system artifacts, cloud-sync listings, communications, and all DAC-related documents across Lumesis devices and cloud systems after Pendolino’s hire.
- Lumesis objected as overbroad, unduly burdensome, vague, and likely to disclose Lumesis trade secrets and employee privacy information; Lumesis ran limited searches and produced one page it received from a client that DAC identifies as a DAC page.
- Lumesis’s e-discovery vendor estimated comprehensive compliance could require extensive custodial/cloud imaging and cost roughly $75,000–$100,000; Lumesis proposed narrower searches using MD5 hash values for specific DAC documents, which DAC did not provide.
- Court found relevance present (possession of DAC materials is central) but the subpoena’s scope and proposed intrusive, costly searches were disproportionate to the needs of the case given limited factual support tying Pendolino to misappropriation; court quashed the subpoena and denied DAC’s motion to compel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lumesis must comply with broad Rule 45 subpoena for forensic images, system artifacts, cloud data, and communications | DAC: materials may reside on Lumesis systems; Pendolino objected he lacks authority to produce Lumesis-owned ESI, so subpoena is necessary | Lumesis: subpoena is overbroad, vague, unduly burdensome, would disclose Lumesis trade secrets and private employee data, and is disproportionate | Quashed subpoena — too broad and disproportionate; ordered narrower, targeted discovery instead of full imaging |
| Whether Lumesis’s burden of compliance outweighs DAC’s need | DAC: information is relevant to trade-secret and misappropriation claims and Pendolino’s answers suggest documents may be on Lumesis systems | Lumesis: extensive cost, technical burden, and privacy/trade-secret risks; MD5/hash-based targeted searches proposed as reasonable alternative | Court credits Lumesis’s burden and expense; recommends MD5/hash or targeted searches; full-system imaging not required |
| Particularity/vagueness of subpoena (e.g., "computer artifacts") | DAC: subpoena tailored to seek DAC materials placed on Lumesis systems and communications about Pendolino | Lumesis: many categories lack requisite particularity and are undefined, making compliance impracticable | Court finds some categories (e.g., artifacts) insufficiently particular; broad categories not enforceable without narrowing |
| Whether sanctions/protective measures (confidentiality stipulations) cure Lumesis’s concerns | DAC: offered confidentiality agreement among DAC, Pendolino, Lumesis | Lumesis: earlier concerns about DAC counsel’s statements and trade-secret exposure persisted; confidentiality may be insufficient without limiting scope | Court notes confidentiality offers but emphasizes proportionality and burden; declines to compel production and denies protective-order motion as moot |
Key Cases Cited
- United States v. Procter & Gamble Co., 356 U.S. 677 (Sup. Ct.) (discussing discovery’s fact-finding purpose)
- Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (Sup. Ct.) (broad construction of relevance in discovery)
- Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334 (11th Cir.) (discussing focus of discovery on claims and defenses)
- Farnsworth v. Procter & Gamble Co., 758 F.2d 1545 (11th Cir.) (balancing interests for protective orders)
- McCarthy v. Barnett Bank of Polk Cnty., 876 F.2d 89 (11th Cir.) (discussing balancing approach in discovery/protective order analysis)