Foos v. Taghleef Industries, Inc.
Foos v. Taghleef Industries, Inc.
2015 WL 10960989 (S.D. Ind. 2015)
March 3, 2015
Hussmann, William G., Jr., United States Magistrate Judge
Summary
The Court granted in part and denied in part the Plaintiff's Motion to Compel, ruling that the resolution of this dispute is governed by the Court's Order on Case Management Plan. The Court limited the request to a forensic examination of Lawrence Mauer's work computer in a commercially reasonable manner, with an appropriate protocol to protect the Defendant's concerns about the production of attorney-client privilege or other commercially valuable materials.
David L. Foos, Plaintiff,
v.
Taghleef Industries, Inc., Defendant
v.
Taghleef Industries, Inc., Defendant
2:13-cv-438-JMS-WGH
Signed March 03, 2015
Hussmann, William G., Jr., United States Magistrate Judge
ORDER ON PLAINTIFF'S MOTION TO COMPEL
*1 This matter is before me, William G. Hussmann, Jr., United States Magistrate Judge, on Plaintiff's Motion to Compel, filed January 5, 2015. (Dkt. 55.) The Defendant's Brief in Response was filed January 19, 2015 (Dkt. 59), and the Plaintiff's Reply was filed January 27, 2015 (Dkt. 60).
Plaintiff's Motion concerns Request No. 5 in Plaintiff's Second Request for Production, which asks Defendant to provide
all work or personal computers, PDA's, smartphones or other devices capable of sending or receiving electronic mail, text messages, or other electronic correspondence for the employees listed in Request No. 4 above, which potentially contain relevant or responsive correspondence, [to] be produced for examination.
(Dkt. 55 at p. 2 (footnote omitted).) The list of employees to whom this request would apply includes at least ten people. (Id.)
Being duly advised, I now GRANT in part and DENY in part the Plaintiff's Motion to Compel, as follows:
1. I agree that the resolution of this dispute is governed by the Court's Order on Case Management Plan. (Dkt. 16.) Federal Rule of Civil Procedure 34(b)(2)(E) provides a mechanism to resolve such disputes which is only available if the parties have not otherwise stipulated to another procedure or another procedure has not previously been ordered by the court. In this case, the parties stipulated to provide this information in a particular manner (Dkt. 14) and the Court ordered that procedure to become binding on the parties by virtue of the Order on Case Management Plan (Dkt. 16), as follows:
If a party requests documents that are stored in an electronic format, the disclosing party may provide the requesting party printed copies of documents [...]. If the receiving party determines in good faith that a disclosure of a document in printed format does not adequately allow the party to review the document, the receiving party may request that an electronic copy be provided to it. If a requesting party requests the examination of any hard drives, servers, computers, voice mail systems, or other electronic devices or components, such disclosure, if appropriate, shall be made in a commercially reasonable manner.
(Dkt. 14 at p. 4.)
2. In this case, the Court must determine whether Mr. Foos “determine[d] in good faith” that a document in printed format does not adequately allow the party to “review the document.” (Id.)
3. Plaintiff has not made a showing that it is unable to review any particular document. While Plaintiff points to one or two “discrepancies” in the production, there has been no showing made that provision of a further electronic copy is necessary to adequately review or perceive any particular document.
*2 4. As to the request to produce “all work or personal computers,” the Plaintiff's request for the examination of the devices of at least ten people is not made because they are unable to review a particular document, but rather is because they believe there has been an incomplete production of printed documents.
5. Plaintiff does cite in its Reply to a belatedly produced document (“bates labeled TI-3605”) which is an email from Lawrence Mauer relevant to the issues before the Court. Because Mr. Mauer is clearly an important participant in the decision making process in this case, further examination of Mr. Mauer's work computer hard drive may be reasonable.
6. It is not commercially reasonable to require the production of all of the items for all of the people which Plaintiff has requested. A commercially reasonable request in this case should be limited to a forensic examination of Mr. Mauer's work computer. The examination of Mr. Mauer's work computer must be done in a commercially reasonable manner that would not take the computer out of Mr. Mauer's use for more than a short period of time, which presumably would be no more than a few days. The search must be limited to an appropriate protocol which will attempt to adequately protect the Defendant's concerns about the production of attorney-client privilege or other commercially valuable materials. In the event the parties cannot reach an agreement as to appropriate search terms, a further motion for clarification of terms will be considered by the Court.
Therefore, Plaintiff's Motion to Compel is GRANTED in part and DENIED in part. It is granted only to the extent that Plaintiff may conduct a forensic examination of Lawrence Mauer's work computer in a reasonable manner. In all other respects, the Plaintiff's Motion to Compel is denied for the reasons stated above and for those found in the Defendant's Brief in Response (Dkt. 59).
SO ORDERED the 3rd day of March, 2015.