280 F.R.D. 681
S.D. Fla.2012Background
- Plaintiffs Wynmoor Community Council, Inc. et al. sue Defendant QBE Insurance for breach of an insurance contract arising from Hurricane Wilma losses (2005).
- QBE moved to compel production and for a forensic examination after Plaintiffs allegedly did not respond to the Second Request for Production and shredded documents.
- Court previously ordered preservation of documents, including ESI, and declined an immediate mirror image production, addressing forensic need in the current motion.
- Plaintiffs contend they provided broad access to records since 2005 and object to ESI on grounds of burden and duplicative value, citing lack of servers and Hurricane-related losses.
- Defendant asserts ESI is not duplicative of hard copies and that shredding and data loss indicate need for forensic imaging to recover potentially responsive material.
- Court grants the motion to compel production and Orders a forensic examination under a Bank of Mongolia-like collection protocol, appointing an independent computer expert.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ESI discovery was properly compelled despite untimely response | Plaintiffs claim late response was justified and objections valid. | Untimely response waived objections; ESI highly relevant and nonduplicative. | Objections deemed waived; discovery scope justified. |
| Whether the court should order a forensic examination of Plaintiffs’ computers | No need; data recovery unlikely and burdensome. | Forensic imaging necessary to recover deleted or unrecoverable data and preserve evidence. | Forensic examination warranted and approved with safeguards. |
| What procedure should govern the forensic imaging and related costs | Nonprofit Plaintiffs cannot bear high imaging costs. | Costs should initially be borne by Defendant; potential later allocation if misconduct is shown. | Independent expert appointed; Defendant pays initial costs; collection and review protocol set, including confidentiality and privilege protections. |
Key Cases Cited
- Bank of Mongolia v. M & P Global Financial Services, Inc., 258 F.R.D. 514 (S.D. Fla. 2009) (mirror imaging protocol and preservation considerations for ESI)
- McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001) (broader discovery scope for ESI; duty to search)
- U & I Corporation v. Advanced Medical Design, Inc., 251 F.R.D. 667 (M.D. Fla. 2008) (burden/cost analysis for ESI production; party bears burden to show undue burden)
- In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009) (forensic imaging considerations and balancing privacy vs. utility)
- Commercial Union Ins. Co. v. Westrope, 730 F.2d 729 (11th Cir. 1984) (standard for motions to compel discovery)