The Federal Rules of Civil Procedure set forth the scope and limits of discovery. Under Rule 26(b),
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense ... [that] is relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence ..., [however] the court must limit the frequency or extent of discovery otherwise allowed by these rules ... if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues....”
Fed.R.Civ.P. 26(b). The Advisory Committee notes to Rule 26 are instructive. They make clear that a broad search for facts, and indeed “fishing” for evidence is permitted. Adv. Com. Notes, 1946 Amendment, Rule 26, Fed.R.Civ.P. “Of course, matters entirely without bearing either as direct evidence or as leads to evidence are not within the scope of inquiry, but to the extent that the examination develops useful information, it functions successfully as an instrument of discovery, even if it produces no testimony directly admissible.” Id.
12It is settled that, electronically stored information is discoverable under Rule 34(a) of the Federal Rules of Civil Procedure. “During discovery, the producing party has an obligation to search available systems for the information demanded.” McPeek v. Ashcroft, 202 F.R.D. 31, 32 (D.D.C.2001). Deleted computer files, whether e-mails or otherwise, are likewise discoverable. Bank of Mongolia v. M & P Global Financial Services, Inc., 258 F.R.D. 514, 519 (S.D.Fla.2009).
3Rule 34 of the Federal rules of Civil Procedure provides that “[t]he party to whom [a] ... request [to produce] is directed must respond in writing within 30 days after being served ...,” unless the parties stipulate to a shorter or longer time under Rule 29 or the court orders otherwise. Fed.R.Civ.P. 34(b)(2)(A). “[T]he Advisory Committee notes to the 1970 Amendment [to Rule 34] state that this subdivision ‘is essentially the same as that in Rule 33....’ Thus as a general rule, when a party fails to timely object to ... production requests ... the objections are deemed waived.” Pitts v. Francis, 2008 WL 2229524, *2 (N.D.Fla., May 28, 2008) (citations omitted). However, the Court can excuse an untimely response for good cause. Bank of Mongolia v. M & P Global Financial Services, Inc., 258 F.R.D. 514, 518 (S.D.Fla.2009).
4If a party fails to answer a request for production, the party seeking the discovery may move for an order compelling a response under Fed.R.Civ.P. 37(a)(2). Motions to compel are committed to the sound discretion of the court. Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir.1984). On a motion to compel the production of electronically stored information, a responding party need not provide “information from sources that the responding party identifies as not reasonably accessible because of undue burden or cost.” U & I Corporation v. Advanced Medical Design, Inc., 251 F.R.D. 667, 674 (M.D.Fla.2008). The responding party has the burden to make this showing, however, even “if the responding party succeeds, the court may nevertheless order the discovery if the requesting party shows good cause.” Id. The court must consider “whether the burden or expense of the proposed discovery outweighs the likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake ... and the importance of the proposed discovery in resolving the issues.” Id.
*686 Plaintiffs served their response to the Second Request for Production with their response to the motion to compel nearly three months after they were served.
According to e-mail correspondence dated October 28, 2011, Plaintiffs claimed to be “diligently working on the electronic material” and requested more time. (DE 59–2) Subsequently, Defendant's learned from Plaintiffs' Chief Information Officer, John Holthausen, that at least as of February 1, 2012, he had made no effort to retrieve any ESI from Plaintiffs' computers. (DE 75–2, pp. 52, 71, 78, 95,111, 116) Plaintiffs' response to the Second Request for Production objects to every request for electronic discovery as unreasonably duplicative as well as expensive and burdensome “taking into account the needs of the case, the amount in controversy, the Plaintiff's resources as non-profit condominium associations and the lack of value of the electronic discovery in resolving the issues.” (DE 68–3) Plaintiffs also assert that the Second Request for Production is essentially identical to the First Request for Production with the addition of larger time frames in the requests. Plaintiffs claim to have served objections to the First Request in June of 2011. (DE 68, p. 4) The Court notes that the First Request was apparently served on the Plaintiffs on April 15, 2011, (DE 59–3) meaning that Plaintiffs' response was outside of the 30 days required by Rule 34.
5The Court finds that the Plaintiffs' response to Defendant's Second Request for Production was untimely. Other than requesting more time to work on the ESI on October 28, 2011, Plaintiffs apparently did nothing until faced with a motion to compel. Indeed, it appears that Plaintiffs undertook no efforts to produce ESI responsive to Defendant's discovery request. Plaintiffs have not demonstrated good cause for their late response. Their objections are therefore deemed waived.
6Moreover, even if Plaintiffs' objections were timely, their objection that the ESI would be duplicative and unduly burdensome in light of the needs of the case is unsupported by the evidence presented. The Plaintiffs are seeking damages arising to their properties from the Defendant's alleged breach of an insurance contract. They are forty-six condominium associations whose combined losses could be substantial. Mr. Holthausen testified that not all of Plaintiffs' ESI would necessarily be found in hard copy format. Additionally, Plaintiffs have no policy in place for generating hard copies of e-mails between employees, or any e-mail policy whatsoever. Further, in light of the evidence of an unusually large spate of document shredding, some of which may have been unauthorized by Plaintiffs' CFO, there is at least the possibility that hard copy evidence germane to this litigation may have been destroyed that would not otherwise be available to the Defendant absent access to ESI stored in Plaintiffs' computer systems. For example, ESI relating to work orders pre-dating Hurricane Wilma could prove relevant to the condition of Plaintiffs' properties prior to the storm. Despite Keith Arnold's testimony that he would never authorize the destruction of maintenance work orders, Defendant alleges that very few pre-Hurricane Wilma work orders have been produced in hard copy. Therefore, responsive ESI stored on Plaintiffs' computers would not necessarily be duplicative of the hard copy discovery the Plaintiffs have already provided in this case. Finally, Plaintiffs have evidently made no efforts to identify ESI, deleted or otherwise, responsive to Defendant's request for production Although, according to the Plaintiffs' CIO, they presently lack the capability to undertake a search of their computer system for responsive ESI, this does not relieve them of their discovery obligation.
7Defendant requests the court order forensic imaging in this case. It contends that Plaintiffs have produced no ESI whatsoever, and a forensic examination may uncover electronic copies of recently purged hard copy documents. A forensic image, otherwise known as a “mirror image” will “replicate bit for bit sector for sector, all allocated and unallocated space, including slack space, *687 on a computer hard drive.” Bennett v. Martin, 186 Ohio App.3d 412, 425, 928 N.E.2d 763 (10th District, 2009), citing, Balboa Threadworks, Inc. v. Stucky, 2006 WL 763668, *3 (D.Kan., Mar. 24, 2006), quoting, Communications Ctr., Inc. v. Hewitt, 2005 WL 3277983, *1 (E.D.Cal., Apr. 5, 2005). A mirror image “contains all the information in the computer, including embedded, residual, and deleted data.” Id. citing, Ferron v. Search Cactus, L.L.C., 2008 WL 1902499, *3, fn. 5 (S.D.Ohio, April 28, 2008). A Court must be mindful of the potential intrusiveness of ordering forensic imaging, however. Id. Before compelling such imaging the court must weigh inherent privacy concerns against its utility. Id., citing, John B. v. Goetz, 531 F.3d 448, 460 (6th Cir.2008). The Court should consider “whether the responding party has withheld requested information, whether the responding party is unable or unwilling to search for the requested information, and the extent to which the responding party has complied with discovery requests.” Id. citing, Henderson v. U.S. Bank, N.A., 2009 WL 1152019, *2 (E.D.Wis., Apr. 29, 2009); Bianco v. GMAC Mtg. Corp., 2008 WL 4661241, *2 (E.D.Pa., Oct. 22, 2008); Williams v. Massachusetts Mut. Life Ins. Co., 226 F.R.D. 144, 146 (D.Mass.2005). “When a requesting party demonstrates ... the responding party's failure to produce requested information, the scales tip in favor of compelling forensic imaging.” Id. at 426, 928 N.E.2d 763 citing, White v. Graceland College Center for Professional Development & Lifelong Learning, Inc., 2009 WL 722056, *7 (D.Kan., Mar. 18, 2009); Diepenhorst v. Battle Creek, 2006 WL 1851243, *3 (W.D.Mich., June 30, 2006); In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex.2009).
Jack Kubasek, Plaintiffs' Assistant Administrator testified in deposition that the Plaintiffs' work order system has always been maintained on the computer system. (DE 59–4, pp. 57–60) Hard copies are also maintained in the maintenance department, and then in storage. Id.
at pp. 66–67. Plaintiffs assert that the drive containing all of their pre-Hurricane Wilma maintenance work orders in electronic format crashed during the hurricane and therefore, there are no work orders in electronic format predating the storm in its computer system. According to John Holthausen's affidavit, this data is unrecoverable. However, he concedes that the recovery of this data wasn't a high priority to him in the months immediately following the storm, nor is he an expert in computer forensics. Plaintiffs also claim that only a few of its employees maintain work related e-mail accounts, and it has no policy regarding saving these e-mails on its servers.
8It would appear that Plaintiffs are either unwilling or unable to conduct a search of their computer systems for documents responsive to Defendant's discovery requests. In light of the foregoing, the Court believes that a forensic examination of Plaintiffs' computers is warranted. See,
Henderson v. U.S. Bank, N.A., 2009 WL 1152019 (E.D.Wis., Apr. 29, 2009). Although Mr. Holthausen is of the opinion that the work orders in electronic format pre-dating Hurricane Wilma are unrecoverable, he is not a forensic expert by his own admission. Furthermore, there may be other documents contained on Plaintiffs' computer system that are responsive to Defendant's second request for production. There is no way to know for sure because according to Mr. Holthausen, he was unaware of this lawsuit until a few months ago and he has not made any effort to retrieve ESI in response to Defendant's discovery requests. The Plaintiffs' properties are extensive and the potential damages in this case considerable. Defendant is entitled to employ the discovery process to assist in preparing its defense.
Mindful of the potential intrusiveness of a compelling a forensic examination, the Court will employ a collection and review protocol as outlined in Bank of Mongolia. The Court is aware that Plaintiffs are non-profit and acknowledges that this procedure is likely to be costly. Therefore, the Court sets forth the following procedure:
1. An independent computer expert shall be appointed by the Court and shall mirror image Plaintiffs' computer system. (To the extent it is possible, the independent expert shall conduct his examination in a manner that minimizes the disruption to the operation of Plaintiffs' business.)
*688 2. The parties have up through and including March 12, 2012, to meet and confer regarding their designation of an independent computer expert. If the parties cannot agree, on or before March 15, 2012, each party shall submit its recommendation to the Court, and the Court will select the expert.
3. The appointed expert shall serve as an Officer of the Court. Thus, to the extent that this computer expert has direct or indirect access to information protected by attorney-client privilege, such disclosure will not result in any waiver of the Plaintiffs' privilege.
4. The independent expert shall sign a confidentiality order. Additionally, the expert shall be allowed to hire other outside support if necessary in order to mirror image the Plaintiffs' computer system. Any outside support shall be required to sign the same confidentiality order.
5. The expert shall mirror image the Plaintiffs' computer system.
6. The Defendant shall provide a list of search terms to the Court to identify responsive documents to Defendant's document requests on or before March 15, 2012. After Defendant has submitted the search terms to the Court, Plaintiffs shall have 5 days to submit their objections to the Court regarding any of the search terms, which the court will rule upon. The Court will provide the search terms to the independent expert.
7. Once the expert has mirror imaged the Plaintiffs' computer system, the expert shall search the mirror image results using the search terms. The results of the search terms and an electronic copy of all responsive documents shall be provided to the Plaintiffs and to the Court.
8. The Plaintiffs shall review the search term results provided by the independent expert and identify all responsive documents. The Plaintiffs shall either produce all responsive documents to the Defendant or identify those responsive documents not produced on a privilege log to the Defendant within 20 days of the date that the Plaintiffs receive the search term results from the independent expert. Any privilege log produced shall comply strictly with the Local Rules for the Southern District of Florida.
9. Defendant shall pay for all fees and costs of hiring the independent expert at this time. However, if at a later time there is evidence of the Plaintiffs improper deletion of electronic documents or any other associated improper conduct, the Court will revisit this issue and consider charging the Plaintiffs for the fees and costs of the independent expert or imposing the fees and costs on the parties in a duly appropriate apportioned manner.
10. The independent expert shall provide a signed affidavit detailing the steps he or she took in mirror imaging the Plaintiffs' computer system and searching the mirror image for the search terms within 5 days of providing the Plaintiffs and the Court with the results of the search for search terms in the mirror image.