United States District Court, M.D. Florida, Tampa Division
Arnold Sansone United States Magistrate Judge.
Services, Inc. seeks sanctions and fees against Rakesh Dixit,
Media Shark Productions, Inc., and Knowmentum, Inc.
(collectively, the Dixit defendants) and an order to show
cause why the Dixit defendants should not be held in
contempt. (Doc. 218). HealthPlan asks the court to: (i) order
the immediate handover of Feron Kutsomarkos’s laptop
and associated hard drives to HealthPlan’s designated
expert for a full forensic inspection; (ii) order the Dixit
defendants and their attorneys to show cause why they should
not be held in contempt; (iii) instruct the jury at trial
that the Dixit defendants have engaged in bad faith
litigation misconduct by violating this court’s prior
order; and (iv) find the Dixit defendants’ litigation
misconduct to support a fee award at the end of this case.
(Doc. 218, p. 3). Besides HealthPlan’s motion for
sanctions, the court construes these requests as a motion for
the Dixit defendants to comply with this court’s order
at Doc. 200. The Dixit defendants oppose this motion. (Doc.
October 16 hearing, this court granted HealthPlan’s
oral motion to compel immediate inspection of Ms.
Kutsomarkos’s laptop in Mr. Rakesh Dixit’s
possession. (Doc. 200. ¶ 6). The court required Mr.
Dixit to turn over the hard drives from Ms.
Kutsomarkos’s laptop to his attorneys by Saturday
October 19. (Id. at ¶ 6.b). Mr. Dixit complied,
and Mr. Dixit’s counsel has the hard drives. (Doc.
201). The court required HealthPlan to comply with the
parties’ protective order for the selection of the
expert. (Doc. 200, ¶ 6.g). HealthPlan identified an
expert and gave the Dixit defendants ten days to object as
required by the protective order. (Doc. 218, p. 2). 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.” (Doc. 218-2).
argues the Dixit defendants must comply with the
court’s October 16 order (Doc. 200) directing
inspection of the hard drives once HealthPlan followed the
protocol from the protective order (Doc. 104) for selecting a
suitable expert for the laptop examination (Doc. 218, p. 4).
HealthPlan asserts it complied with the protective order by
disclosing the expert to the Dixit defendants and gave the
Dixit defendants ten calendar days to disclose their written
objections to the expert. (Id. at p. 5). HealthPlan
argues the Dixit defendants waived any objections to the
laptop inspection. (Id. at pp. 5–6).
HealthPlan asserts the Dixit defendants did not provide good
cause for objecting to HealthPlan’s selected expert.
(Doc. 218-2). HealthPlan speculates 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. (Doc. 218, p. 10).
response, the Dixit defendants argue HealthPlan’s
comments at the October 16 hearing suggested the drives were
only to be forensically imaged. (Doc. 229, p. 2). The Dixit
defendants also argue a different legal standard exists for
permitting a forensic examination of the hard drives rather
than permitting a mere image and cite Garrett v.
University of South Florida Board of Trustees, No.
8:17-cv-2874-T-23AAS, 2018 WL 4383054 (M.D. Fla. Sept. 14,
at the October 16 hearing, the court asked if HealthPlan
wanted to do an “actual forensic search of the
laptop.” (Doc. 203, p. 79). HealthPlan responded:
Very simple. We have somebody forensically image the laptop
and that’s it. They get to keep the laptop. All
we’re doing is 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
(Id. at p. 82). HealthPlan explained why the
forensic imaging and subsequent search and review were
necessary at the October 16 hearing. (Id. at pp.
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. 2018 WL 4383054, at *4. Here, counsel for Ms.
Kutsomarkos noted Ms. Kutsomarkos provided pdf versions of
documents from the laptop. (Doc. 203, p.79). However, the pdf
files scrubbed the metadata from the documents and that
metadata should be available on the hard drives.
(Id. at p. 80). 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.
into electronically stored information, including forensic
examinations, is subject to the scope of discovery under Rule
26(b). Fed. R. Civ. P. 34(a); U&I Corp. v. Advanced
Medical Design, Inc., 251 F.R.D. 667, 672 (M.D. Fla.
Mar. 26, 2008). When deciding whether to permit forensic
examinations of electronic devices, courts consider the
privacy interest of the party whose devices are to be
examined. Bradfield v. Mid-Continent Cas. Co., No.
5:13-CV-222-Oc-10PRL, 2014 WL 4626864, at *4 (M.D. Fla. Sept.
15, 2014) (citations omitted); Valdes v. Greater Naples
Fire Rescue Dist., No. 2:17-CV-417-FtM-29CM, 2018 WL
4281472, at *6 (M.D. Fla. Sept. 7, 2018). Courts also
consider whether the party (whose devices are to be examined)
withheld requested discovery; whether the party cannot or
will not search for requested discovery; and to extent to
which the party complied with past discovery requests.
Bradfield, 2014 WL 5626864, at *4 (citation
Middle District of Florida Discovery Handbook also outlines
the limits of electronic discovery. Middle District Discovery
(2015) at VII(C). As for forensic examinations, the Handbook
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.” Middle District Discovery 2015 at VII(E).
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. (Doc. 203,
p. 88). Ms. Kutsomarkos also conducted her own search of the
emails rather than having an expert or her attorney conduct
the search. (Id. at p. 80). Also, Mr. Dixit, another
defendant, searched and recovered the same files Ms.
Kutsomarkos produced in the native format. (Id. at
p. 79). HealthPlan also conveyed certain documents that
should have come from a professional search of the laptop
were missing. (Id. at p. 81). 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. (Id. at p. 85).
it is ORDERED:
(1) HealthPlan’s motion for the Dixit defendants to
comply with this court’s order (Doc. ...