Coquina Invs. v. Rothstein
Coquina Invs. v. Rothstein
2011 WL 13096508 (S.D. Fla. 2011)
July 20, 2011
Bandstra, Ted E., United States Magistrate Judge
Summary
The court denied the plaintiff's motion to compel TD Bank to provide documents in native format, finding that the plaintiff had failed to establish any legal basis for the production of the requested ESI and that TD Bank had fully complied with Fed.R.Civ.P. 34(b)(2)(E)(ii) by providing the subject ESI in the form “in which it is ordinarily maintained.”
Coquina Investments, Plaintiff,
v.
Scott W. Rothstein and TD Bank, N.A., Defendants
v.
Scott W. Rothstein and TD Bank, N.A., Defendants
CASE NO. 10-60786-CIV-COOKE/BANDSTRA
Signed
July 19, 2011
Filed July 20, 2011
Counsel
David Scott Mandel, Camellia Noriega, Jason Brent Savitz, Nina Stillman Mandel, Mandel & Mandel LLP, Miami, FL, Miguel A. Estrada, Gibson Dunn & Crutcher, Washington, DC, for Plaintiff.Christina M. Egan, McGuireWoods, LLP, Chicago, IL, Danielle N. Garno, Holly Robin Skolnick, Greenberg Traurig, Marcos Daniel Jimenez, McDermott Will & Emery, Richard H. Critchlow, Kenny Nachwalter, P.A., Miami, FL, Glenn E. Goldstein, Greenberg Traurig, Stuart Harold Singer, Boies Schiller & Flexner, Fort Lauderdale, FL, Jason D. Evans, Mark W. Kinghorn, Peter J. Covington, William O. L. Hutchinson, McGuireWoods, LLP, Charlotte, NC, Jeffrey Scott York, McGlinchey Stafford PLLC, Robert Eric Bilik, McGuireWoods, Jacksonville, FL, Robert Plotkin, McGuireWoods, LLP, Washington, DC, Donna M. Evans, Greenberg Traurig LLP, Boston, MA, for Defendants.
Bandstra, Ted E., United States Magistrate Judge
ORDER DENYING MOTION TO COMPEL NATIVE FORMAT DISCOVERY
*1 THIS CAUSE came before the Court on Plaintiff's Motion to Compel TD Bank to Provide Documents in Native Format (D.E. 146) filed on March 24, 2011. Previously, all non-dispositive motions in this case, including the instant motion to compel, were referred to the undersigned for appropriate disposition by the Honorable Marcia G. Cooke pursuant to 28 U.S.C. § 636(b). Accordingly, the undersigned conducted a hearing on this motion on July 12, 2011.[1]Following careful review of the pleadings, the court file and applicable law, and in light of oral argument of the parties, it is hereby
ORDERED AND ADJUDGED that Plaintiff's Motion to Compel TD Bank to Provide Documents in Native Format is DENIED for reasons explained below.
ANALYSIS
Plaintiff's motion seeks to compel TD Bank, N.A. (“TD Bank”) to provide all electronic documents previously produced by TD Bank in response to plaintiff's second request for production of documents “in unencrypted native format with all metadata and appropriate load files” pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Principle 12 of the Sedona Principles, and case law interpreting these rules and principles with respect to the requested discovery. TD Bank objects arguing, inter alia, the non-existence of “native format” for much of the subject discovery, its full compliance with Fed.R.Civ.P. 34 in producing the subject electronically stored information (“ESI”) in the form it is “ordinarily maintained,” the burden and expense producing ESI for any documents already produced that may have such “native format,” and a myriad of other objections.
Reviewing this motion after extensive briefing by the parties, and assisted by oral argument of counsel at the hearing on this motion, the undersigned finds that plaintiff has failed to establish any legal basis for the production of the requested “native format” ESI under Rules 26 or 34 of the Federal Rules of Civil Procedure, cited case law, or any other authority. First, and most importantly, the undersigned finds that plaintiff has failed to establish even the existence of “native format” data for much (if not all) of the subject discovery in that plaintiff has conducted no other discovery, such as depositions of TD Bank personnel, confirming that unencrypted, “native format” ESI was created or currently exists for Lotus Notes e-mails and other discovery previously produced by TD Bank. TD Bank insists that no such “native format” data exists for many of these documents including the subject e-mails, and argues that plaintiff has not established the contrary. The undersigned notes that many months have elapsed since this discovery was first produced by TD Bank (in February of this year) which provided ample time to resolve this “existence” issue or to properly place it before the Court.
*2 Second, and equally important, is TD Bank's position that it has fully complied with Fed.R.Civ.P. 34(b)(2)(E)(ii) by providing the subject ESI in the form “in which it is ordinarily maintained.” See Aguilar v. Immigration & Custom Enforcement Division of U.S. Dept. of Homeland Security, 255 F.R.D. 250, 356 (S.D.M.Y. 2008). Once again, plaintiff offers no evidence or argument to support a contrary finding or to establish that their entitlement to more detailed ESI under the circumstances of this case.
Third, TD Bank has established its burden and expense of producing any existing “native format” data without any reasonable solution offered by plaintiff to lessen this burden and expense. While plaintiff notes that false and fraudulent “TD Bank” documents were created by defendant Scott Rothstein in his nefarious fraudulent schemes, plaintiff fails to establish that TD Bank participated or had any knowledge of such illegal activity by Rothstein, a customer of TD Bank.
Finally, the Court fails to understand why plaintiff has refused to participate in the proposed solution by TD Bank with respect to this discovery, namely to identify those specific documents which it, in good faith, questions in terms of genuineness or authenticity, after which TD Bank would search for any available “native format” data for the suspected documents. Plaintiffs has refused to accept this offer, although repeatedly made, without any explanation to either TD Bank or the Court. Apparently, TD Bank has left this offer open and will still provide such discovery if timely requested without court intervention despite the close of discovery in this case.
While TD Bank raises additional objections, the undersigned finds it unnecessary to address them issues in light of the above reasons for denying this motion to compel. Accordingly, the Court denies in its entirety plaintiff's motion to compel this additional discovery from TD Bank.
DONE AND ORDERED in Chambers, this 19th day at of July, 2011.
Footnotes
On March 8, 2011, the undersigned ordered the parties to file a status report detailing the efforts made to resolve this motion by agreement or to narrow the issues in dispute. On January 11, 2011, the parties advised that they had met twice, on June 20 and June 21, for several hours on both dates without any success in resolving even narrowing the issues. Consequently, the undersigned heard oral argument of the parties on July 12 and now enters this Order.