Richardson, Monte C., United States Magistrate Judge
Sometimes persistence does not pay off. The court denied plaintiff’s renewed motion to compel seeking access to inspect defendant’s computer, cell phones, and email addresses because plaintiff still had not shown that the proposed discovery’s likely benefit outweighed its burden absent any discovery misconduct.
Plaintiff sought permanent injunctive relief enjoining defendant from breaching the non-compete, non-solicitation, and confidentiality provisions in his Territory Agreement, misappropriating plaintiff's trade secrets, and illegally accessing plaintiff's computer system. The court directed the parties to cooperate in the taking of limited discovery in advance of a hearing on a motion plaintiff filed for preliminary injunction. Defendant accordingly agreed to respond to plaintiff's interrogatories, request for production, and request for admissions.
However, defendant objected to a request for inspection on the ground that the request for direct access to any of defendant’s computers, hard drives, electronic devices, and email addresses covered personal and private matters beyond any targeted request for discovery. The court denied plaintiff’s initial motion to compel compliance with the inspection request because plaintiff showed neither that defendant had engaged in any discovery misconduct nor that the documents sought were unobtainable through specific production requests. Plaintiff’s renewed motion to compel sought “(i) Defendant's computer; (ii) Defendant's two cell phones (the non-smart phone used until approximately November 2012 and his IPhone he started using in approximately November 2012); and (ii) the log-in information for the email accounts associated with the email addresses thedovvnen@aol.com and gorillarecruiter@gmail.com.”
The court denied plaintiff’s renewed motion for several reasons. First, because defendant admitted that he competed with plaintiff—he instead asserted there was no valid non-compete agreement—plaintiff's efforts to produce documents evidencing competition served no significant benefit.
Second, providing plaintiff direct inspection access was unwarranted because the court found no reason to doubt defendant’s assertion that he had fully complied with plaintiff’s discovery requests. (“The fact that another person still has an email or text that Defendant has not produced does not automatically mean that it remains on Defendant's computer and/or telephone.”) Pursuant to Rule 34(a), a requesting party may need to check the responding party’s data compilation if there is improper discovery conduct; absent misconduct, no direct check is warranted.
Finally, granting plaintiff wholesale access to defendant's email accounts and cell phones was not consistent with the "limited discovery" allowed in advance of the hearing on the motion for preliminary injunction.
v.
DARREN DOWNEN, Defendant
Counsel
Kevin Douglas Zwetsch, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Tampa, FL, for Plaintiff.Kenneth B. Wright, Bledsoe, Schmidt & Wilkinson, P.A., Jacksonville, FL, for Defendant.