Opinion
Case No. 3:05-mc-017.
February 8, 2006
DECISION AND ORDER ON REMAND ENFORCING SUBPOENAS
On December 9, 2005, this Court entered an Order Enforcing Subpoenas Subject to Protective Order (Doc. No. 29). Respondents appealed to District Judge Rose (Doc. No. 30) and sought and received a stay pending appeal (Doc. Nos. 31, 33). On January 17, 2006, Judge Rose overruled Respondents' objections, dissolved the stay, and remanded the matter for enforcement of the subpoenas (Doc. No. 36). Respondents reacted with a Motion to Clarify (Doc. No. 37) which the Court heard orally on January 20, 2006 (Transcript, Doc. No. 39). Subsequent to the hearing, the parties have submitted material for the Court to consider in its further enforcement order (Doc. Nos. 38, 40, 41, 42).
Part of the search for responsive documents in this case involves searching electronic storage media maintained by Respondents. In the Order Enforcing Subpoenas, this Court ordered:
With respect to electronic information, Respondents shall make their computer systems available for inspection by Whitesell's' counsel (including information technology consultants retained by Whitesell to assist) not later than December 27, 2005. Whitesell's counsel shall conduct this inspection and any copying/downloading from the Respondents' computer systems in such a manner as to minimize interference with Respondents' business operations. All electronic information shall be submitted for inspection in its native electronic form.Id. at 9. In their Motion to Clarify and now in their post-hearing Submission (Doc. No. 38), Respondents propose to modify the Order by having JurrInnov, a litigation support firm to be retained by Respondents, perform the search of the Bamal computers. They also propose that "JurrInnov will assist Bamal's counsel in the formulation of Boolean terms (@, /s, /p, etc.) to perform a thorough search for data in the following parameters: . . ." (Submission, Doc. No. 38-4 at 1). Finally, they propose that JurrInnov's fee be paid by Whitesell, in contrast to the position they took in the Motion to Clarify that they would prefer to pay themselves.
This is a different firm from the computer forensic examiners Mr. Goldman proposed during the hearing on the Motion to Clarify. (See Transcript, Doc. No. 39, at 22).
In contrast to promising to prepare a search protocol in the future, Whitesell has set forth a precise proposed search protocol in its Submission (Doc. No. 40 at 3-4).
As far back as the hearing in October, 2005, the Court proposed on the record that Whitesell provide and pay for the computer forensic examiner needed to search Bamal's computers, in order to obviate the burden of which Respondents complained but which they were unable to quantify. The provision that Whitesell would supply the examiner at its own expense was included in the Order Enforcing Subpoenas which Respondents appealed and which Judge Rose affirmed, although this provision was not one of those to which Respondents objected on appeal.
Respondents have not persuaded the Court that it should modify its earlier Order. The Court notes that the Order, when carried out under the protocol submitted by Whitesell, does not give Whitesell unfettered access to Respondents' electronic files. Instead, it requires that Whitesell's computer forensic examiner prepare a Master Data Set of potentially responsive items and make that available to Respondents and their counsel for review as to scope (Whitesell's Notice, Doc. No. 40 at ¶ 4.g).
This Court's decision is in no way inconsistent with In re Ford Motor Company, 345 F. 3d 1315 (11th Cir. 2003), where the district court had granted a motion to compel allowing a party to have direct access to the opposing party's databases without a hearing and without even waiting for a responsive memorandum. In this case, every consideration has been given to Respondents' positions including numerous opportunities to negotiate the terms and means of access. Even now the Court is not ordering direct party access, but only initial access by counsel's information technology consultant and only after that initial screening on an attorneys-eyes-only basis.
Accordingly, it is hereby ORDERED that Respondents shall make their computer systems available for inspection by Whitesell's' retained information technology consultants (Interhack) not later than February 15, 2006. Interhack shall conduct the examination of Respondents' computer systems pursuant to the protocol set forth in Whitesell's Notice (Doc. No. 40). Not later than the same date, Respondents shall produce for inspection and copying and paper documents responsive to the subpoenas in this case.