Plaintiff is a closely-held limited liability company that owns 272 acres of land in Jackson, Louisiana. According to plaintiff, it has little business activity and its primary purpose is to own property used by the Maddox family for recreation and potential investment income. Defendant is a corporation operating a booster pumping station for its oil pipelines known as the “Felixville station.” The Felixville station is adjacent to plaintiff's property. Plaintiff alleges that petroleum-based contamination from the Felixville station entered onto its property.

Defendant's motion for sanctions is based upon representations made by plaintiff regarding the discovery of electronically stored information (ESI) in a Joint Status Report filed on July 13, 2012 (rec. doc. 21). In the Status Report, plaintiff agreed (1) to search the emails of James Maddox and all members of the Valley View Rentals, LLC using the keywords “Colonial,” “Felixville,” “contamination,” “damages,” “Aucoin,” and “East Feliciana”; (2) to notify James Maddox of the “need to preserve such information related to its claims in this matter”; and (3) to preserve ESI from the date that the LDEQ notified plaintiff of the possible contamination on plaintiff's property.

The parties further agreed to produce ESI within 90-days of the filing of the Status Report. That deadline passed on October 11, 2012. On January 31, 2013, plaintiff responded to discovery propounded by defendant related to the Status Report (see rec. doc. 38-2, at 18-46). In particular, defendant requested production of “any and all documents subject to the Joint Status Report for the agreed upon discovery plan for electronically stored information” (rec. doc. 38-2, at 37 (Def.'s Request for Production No. 14)). In response, plaintiff stated it was producing “some photographs taken in connection with the site investigation” but it was withholding from production certain email communications that were “with counsel” (id.). Defendant did not file a motion to compel production of ESI after receiving this response.

Defendant took the first Rule 30(b)(6) deposition of James Maddox on February 4, 2013, the depositions of his sons Jeffery Maddox and James Maddox, Jr. on February 8, 2013, and the second Rule 30(b)(6) deposition of James Maddox on March 5, 2013. At his second deposition, James Maddox testified that plaintiff's counsel never asked him to preserve his ESI connected with this case, although he independently saved emails he determined to be relevant on his America On Line (“AOL”) email account into a designated folder named “Colonial” (rec. doc. 38-2, at 13-15). Both of Mr. Maddox's sons also stated that they were not asked by plaintiff's counsel to preserve emails and did not perform the keyword searches detailed in the Status Report (id., at 73-74, 92-93).

*2 After his depositions, Mr. Maddox testified by affidavit that he “was instructed to assemble all documents related to the Colonial claim before this suit was filed and [he] did so” (rec. doc. 41-1, at 1). On July 13, 2011, he created a folder on his AOL email account named after plaintiff's counsel and saved emails “related to this suit ... in that folder” (id.). He later renamed the folder “Colonial” and merged the contents of another folder labeled “Valley View” into the “Colonial” folder (id.). He reviewed all emails in this folder to determine which were relevant and ensured that he had saved relevant “sent” emails. (id., at 2). He further stated that the only emails in the folder were between himself and plaintiff's counsel, forwarded versions of these emails to his sons, and some replies from his children (id.). After his second deposition, he searched all folders in his AOL email account using the search words in the Status Report (id., at 3). According to Mr. Maddox, those searches recovered 263 emails that were already saved in the “Colonial” folder, as well as a “few items” in other folders that were not relevant to the litigation (id.).

Defendant filed the instant motion for sanctions on March 22, 2013, the deadline for fact discovery (see rec. doc. 38). Defendant argues that it is entitled to sanctions because plaintiff (1) failed to institute a written “litigation hold” to Mr. James Maddox, (2) failed to perform the keyword searches agreed upon between the parties in the Status Report, and (3) failed to “save all emails relevant to this litigation” as of June 14, 2011 (the date of the LDEQ letter),[1] “resulting in the possible automatic loss of emails relevant to this suit” (rec. doc. 38, at 2-3).

Defendant's request for relief is two-tiered. First, defendant requests the court to appoint “an independent computer forensic expert,” at plaintiff's expense, to search for emails in plaintiff's possession (including all email accounts used by Mr. Maddox and all of plaintiff's “members”) using the search terms agreed upon in the Status Report, to “determine whether there were any emails deleted since the litigation hold should have been instituted,” and to retrieve those emails for production (id.). Second, to the extent the independent computer forensic expert determines “that emails have been deleted ... and cannot be retrieved,” defendant requests the court to strike from plaintiff's petition “all allegations of damages relating to loss of use of the property at issue” and to provide defendant “the use of an adverse jury inference that any ESI, which was not properly preserved, was relevant to these proceedings and favorable” to defendant (id., at 3-4).

This court has looked favorably to the Zubulake decisions out of the Southern District of New York as “setting the benchmark standards for modern discovery and evidence-preservation issues.” Consol. Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335, 339 (M.D. La. 2006) (citing Zubulake I-IV).[2] The court also finds helpful the framework for analyzing requested sanctions regarding alleged spoliation in an opinion issued from the Southern District of Texas. See Rimkus Consulting Group., Inc. v. Cammarata, 688 F. Supp. 2d 598, 610-20 (S.D. Tex. 2010).

Federal courts have the power to issue sanctions for spoliation based upon either their inherent power or applicable statutes or rules. See Rimkus, 688 F. Supp. 2d at 611-12. Sanctions for alleged spoliation are generally addressed under Rule 37(b) of the Federal Rules of Civil Procedure[3] or the court's inherent power to sanction misconduct. Union Pump Co. v. Centrifugal Tech. Inc., 404 Fed.Appx. 899, 905 (5th Cir. 2010). The court's inherent power to impose sanctions is limited to circumstances where the sanctioned party has acted in bad faith. In re ProEducation Int'l, Inc., 587 F.3d 296, 304 (5th Cir. 2009) (citations omitted); see also Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991) (“Because of their very potency, inherent powers must be exercised with restraint and discretion.”).

*3 In the instant motion, defendant moves for sanctions under both Rule 37(b) and the court's inherent power. In its memorandum in support of the motion, however, defendant relies solely on the court's inherent power as the source of its power to sanction. Because defendant does not direct the court to a particular discovery order,[4] the court will analyze defendant's motion through its inherent power to sanction.

Spoliation is “the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Consol. Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. at 339 (quoting Zubulake IV, 220 F.R.D. at 216). Generally speaking, the duty to preserve “arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Id. The duty to preserve “extends to those employees likely to have relevant information, i.e., the ‘key players' in the litigation.” Id.

Although these general rules are widely agreed upon, their application “requires careful analysis of the specific facts and circumstances” before the court. Rimkus, 688 F. Supp. 2d at 613. “Whether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what was done—or not done—was proportional to that case and consistent with clearly established standards.” Id. For example, “the reasonableness of discovery burdens in a $550 million case arising out of the liquidation of hedge funds,” as in Pension Committee of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010), “will be different than the reasonableness of discovery burdens in a suit to enforce noncompetition agreements and related issues....” Rimkus, 688 F. Supp. 2d at 613 n. 8.

The court finds the specific facts and circumstances in the present case particularly informative in defining the scope of plaintiff's duty to preserve and determining whether it breached that duty. Plaintiff is a closely-held company whose primary purpose is to own 272 acres of land used by the Maddox family for recreation activities and for potential investment income (rec. doc. 41, at 1). Plaintiff's total income since inception relative to the property at issue appears to include $1700 for a one-time nonexclusive hunting lease and $81,831 from a mineral lease (see rec. doc. 38-2, at 28 (Pl.'s Answer to Def.'s Interrogatory No. 16)). According to defendant's notice of removal and the attached filings with the Louisiana Secretary of State, plaintiff “is a Louisiana limited liability company that consists of one member, James M. Maddox”[5] (rec. docs. 1 and 1-1). Plaintiff has no email account or electronic information system (see rec. docs. 41, at 1-2.) The primary email account in contention is Mr. Maddox's personal AOL account.[6] At oral argument, plaintiff's counsel represented that the AOL email account is “web-based” and, therefore, would not store emails directly onto Mr. Maddox's computer hard drives. These is no evidence before the court that this web-based account is subject to an automatic deletion policy.[7]

*4 Defendant submits to the court that plaintiff had a duty to preserve not only the emails of “key players” to the litigation, but all alleged “members” of plaintiff. Defendant argues that the source of this duty is both the Status Report and federal jurisprudence, in particular the holding of Pension Committee, 685 F. Supp. 2d 456.

The Status Report expressly stated that plaintiff had a duty to instruct James Maddox to preserve his emails (see rec. doc. 21, at 2).[8] After a review of the record, the court is satisfied that plaintiff met this duty to preserve. At oral argument, plaintiff's counsel represented that he informed Mr. Maddox to preserve all relevant emails soon after receiving the June 14, 2011 letter from the LDEQ, the time when the Status Report stipulated that plaintiff's duty to preserve arose. Although the court questions plaintiff's counsel decision not to search Mr. Maddox's emails using the keyword search terms in the Status Report, that inaction alone does not establish that plaintiff breached its duty to preserve, which arose, according to stipulation, about one year earlier on or about June 14, 2011. On the contrary, the court finds that plaintiff made reasonable efforts—in light of the specific facts and circumstances of this case—to preserve email communications when it anticipated this litigation.

In written and oral argument, Defendant states that Pension Committee establishes that plaintiff's failure to issue a written litigation hold is gross negligence per se. That particular holding in Pension Committee was expressly abrogated by the Second Circuit. See Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135, 162 (2d Cir. 2012) (“We reject the notion that a failure to institute a ‘litigation hold’ constitutes gross negligence per se. ”). In addition, the Fifth Circuit has made clear that the non-moving party must have acted with “bad faith” or “bad conduct” before an adverse inference instruction for spoliation will issue. See Condrey v. SunTrust Bank of Georgia, 431 F.3d 191, 203 (5th Cir. 2005); King v. Illinois Cent. R.R., 337 F.3d 550, 556 (5th Cir. 2003); United States v. Wise, 221 F.3d 140, 156 (5th Cir. 2000); see also Rimkus, 688 F. Supp. 2d at 615 (“In the Fifth Circuit ... negligent as opposed to intentional, ‘bad faith’ destruction of evidence is not sufficient to give an adverse inference instruction and may not relieve the party seeking discovery of the need to show that missing documents are relevant and their loss prejudicial. The circuit differences in the level of culpability necessary for an adverse inference instruction limit the applicability of the Pension Committee approach.”).

*5 The “bad faith” requirement extends to other “drastic” sanctions such as excluding evidence or striking pleadings. See Consol. Aluminum Corp., 244 F.R.D. at 340 (stating that courts “generally try to avoid imposing” sanctions as “drastic” as exclusion of evidence or an adverse inference instruction); Rimkus, 688 F. Supp. 2d at 612 (“Severe sanctions such as granting default judgment, striking pleadings, or giving adverse inference instructions may not be imposed unless there is evidence of ‘bad faith.’ ”).

That plaintiff does not have an email server with an automatic deletion policy is significant. Where such a policy exists, and the non-moving party fails to stop the automatic deletion once litigation is reasonably anticipated, a court can reasonably infer that emails the party had a duty to preserve were deleted. That is why some cases conclude that spoliation can be inferred from a party's failure to act. For example, in Consolidated Aluminum, the defendant had an email server and, upon receive a demand letter from plaintiff, requested that four individuals prevent automatic deletion of their emails by transferring those emails to personal folders. Consol. Aluminum Corp., 244 F.R.D. at 340. The court concluded that the defendant should have suspended its automatic deletion policy with regard to a more expansive set of individuals. Id., 341-42. Because the defendant failed to prevent the deletions, the court held that defendant “potentially [spoliated] relevant evidence through its failure to override its standard document destruction policies when this litigation became reasonably foreseeable.” Id., at 342. In analyzing whether to award the sanction of an adverse inference instruction, the court did not question whether spoliation had occurred. Id. It did conclude, however, that the defendant's litigation hold on the four original individuals was not, given the scope of the information allegedly known to the defendant at the time, “so unreasonable as to demonstrate bad faith” and subject the defendant to the sanction of an adverse inference instruction. Id., at 346.

Here, defendant has not met its burden of establishing, as an initial matter, that plaintiff has breached its duty to preserve emails. Defendant primarily asks for sanctions, in addition to fees and costs, in the form of an investigation of plaintiff's emails by an independent forensic computer expert. The very sanction defendant requests—employment of an independent forensic computer expert to determine whether emails were deleted—highlights the fact that defendant can point to no automatic deletion policy in effect from which the court can infer that spoliation has occurred (i.e., the breach of the duty to preserve) simply through inaction by plaintiff. This is not a situation where defendant had established spoliation on the part of plaintiff with regard to certain emails and has sought sanctions in the form of an independent forensic computer expert's investigation to determine whether additional spoliation occurred. Such a situation may merit, depending upon the specific facts and circumstances, an award of sanctions in the form requested.

Rather than file a motion for sanctions on the deadline for fact discovery, defendant might have been better served by filing a motion to compel under Rule 37(a) of the Federal Rules of Civil Procedure. Indeed, defendant cites several cases where courts have authorized an independent forensic computer expert to search the hard drives of a party in response to a motion to compel (rec. doc. 38, at 13 n.8).[9] Notably, those decisions all involved searches for ESI within hard drives (not web-based email) and all required the moving party to pay the costs of the forensic computer investigation, reserving the right to “revisit” the issue pending a determination that ESI was actually improperly deleted. See, e.g., Bank of Mongolia v. M&P Global Financial Services, Inc., 258 F.R.D. 514, 521 (S.D. Fla. 2009) (“[The moving party] 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 [non-moving party's] improper deletion of electronic documents or any other associated improper conduct, the Court will revisit this issue and consider charging [the non-moving party] for fees and costs of the independent expert or imposing the fees and costs on the parties in a duly appropriate proportioned manner.”).

*6 Even assuming that spoliation could be inferred in this case, defendant's additional requests for sanctions in the form of striking from plaintiff's petition “all allegations of damages relating to loss of use of the property at issue” and the award of an adverse inference jury instruction cannot be awarded because defendant has failed to establish that the emails were deleted by plaintiff with a “culpable state of mind” and that the deleted emails were “relevant” to defendant's claims or defenses. See Consol. Aluminum Corp., 244 F.R.D. at 340 (citing Zubulake IV, at 220).

Where evidence has been spoliated, and the court exercises its discretion to impose sanctions, the seriousness of the sanctions to be imposed depends upon: “(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party.” Consol. Aluminum Corp., 24 F.R.D. at 340. To obtain a severe sanction such as an adverse inference instruction, the movant must establish that the records were destroyed with a “culpable state of mind.” Id. (citing Zubulake IV, at 220). In the Fifth Circuit, the requisite “culpable state of mind” for an adverse inference instruction or other severe sanction is intentional “bad faith” or “bad conduct.” See Rimkus, 688 F. Supp. 2d at 612 (“Severe sanctions such as granting default judgment, striking pleadings, or giving adverse inference instructions may not be imposed unless there is evidence of ‘bad faith.’ ”) (citing Condrey, 431 F.3d 191, 203; King, 337 F.3d 550, 556; Wise, 221 F.3d 140, 156.)

Even if it could be assumed that plaintiff spoliated emails from its inaction, the record does not support the conclusion that plaintiff allowed such spoliation to occur in “bad faith.” As discussed above, there is no clear evidence in the record that any relevant emails were deleted by plaintiff or the members of the Maddox family. The record suggests that James Maddox, the primary custodian, conducted a good faith review of his emails and made a good faith effort to save all relevant emails. Granted, the record also suggests that plaintiff's counsel did not inform Mr. Maddox to preserve emails in accordance with the Status Report, nor did he inform the plaintiff's “members” to conduct the prescribed searches within the Status Report. However, on January 31, 2013, plaintiff did inform defendant that it did not use the agreed upon keyword searches because it determined “that there were so few email items that it was easier to examine all email items rather than do an electronic search” (rec. doc. 38-2, at 31-32 (Pl.'s Answer to Def.'s Interrogatory No. 24)). Accordingly, defendant has not demonstrated to the court that plaintiff acted or failed to act in any way that rises to the level of bad faith. See Consol. Aluminum Corp., 244 F.R.D. at 343-46 (failure to override a standard document destruction policy resulting in the automatic deletion of emails on non-moving party's e-mail server did not constitute bad faith).

Defendant also argues that plaintiff improperly withheld certain email correspondences from production that may not be subject to the attorney-client privilege or the work product doctrine. This fact does not rise to the level of bad faith and could have been addressed through a motion to compel. The court issues no opinion on whether these emails are covered by the attorney-client privilege or the work product doctrine. Although defendant has not formally moved to compel the production of a privilege log in accordance with Rule 26(b)(5) of the Federal Rules of Civil Procedure, the fact that plaintiff has withheld perhaps hundreds of responsive emails on the grounds of attorney-client privilege, work product immunity, or both, has been made clear through the parties' briefing and at oral argument. The court will therefore order plaintiff to produce to defendant a proper privilege log within ten days of the date of this order.

*7 Further assuming that the allegedly spoliated emails were spoliated in bad faith, defendant cannot establish that those emails were relevant or would have resulted in any prejudice to it. This court has previously divided the “relevance” and “prejudice” factor of the adverse inference analysis into three subparts: “(1) whether the evidence is relevant to the lawsuit; (2) whether the evidence would have supported the inference sought; and (3) whether the nondestroying party has suffered prejudice from the destruction of the evidence.” See Consol. Aluminum Corp., 244 F.R.D. at 346. The moving party seeking an adverse inference instruction must provide “some extrinsic evidence of the content of the emails ... for the trier of fact to be able to determine in what respect and to what extent the emails would have been detrimental.” Id. In short, there “must be some showing that there is in fact a nexus between the proposed inference and the information contained in the lost evidence.” Id.

Defendant has made no such showing. Foremost, the adverse inference instruction requested by defendant—“that any ESI, which was not properly preserved, was relevant to these proceedings and favorable” to defendant—is so broad it does not even attempt to establish a foundation for a nexus. Defendant also makes the more defined request that the court strike from plaintiff's petition “all allegations of damages relating to loss of use of the property at issue,” which signifies to the court that defendant's ultimate concern is that emails regarding plaintiff's intended use of the property are central to its request. It is unclear, however, how the search terms selected in the Status Report—“Colonial,” “Felixville,” “contamination,” “damages,” “Aucoin,” and “East Feliciana”—would locate such emails.

Defendant itself highlights many citations from the record showing that Mr. Maddox and his sons have provided ample testimony regarding the intended use of the property (see rec. doc. 38-1, at 13-17). These record citations are consistent with plaintiff's concession that it “has never maintained that it had any express plans or timetable to develop the substantial resources” on its property (rec. doc. 41, at 4-5). Plaintiff also points out that the agreed upon keyword searches would likely not lead to the discovery of communications regarding plaintiff's business activities even if they had existed (id., at 4). The court cannot infer any prejudice to defendant even if emails relevant to the issue of plaintiff's lack of definitive plans for specific business activities had been deleted.

Defendant has shown that plaintiff failed to follow the conditions set forth in their discovery plan. The court's analysis, however, does not end there. The court does not find that plaintiff breached its duty to preserve emails resulting in the spoliation of evidence, or that any such alleged spoliation occurred in bad faith or resulted in any prejudice to defendant. For the foregoing reasons,

IT IS ORDERED that defendant's motion for sanctions is DENIED.

IT IS FURTHER ORDERED that plaintiff shall produce to defendant a privilege log of all emails in the custody and control of Mr. James Maddox in accordance with Rule 26(b)(5) of the Federal Rules of Civil Procedure on or before June 7, 2013.

Plaintiff argues that the LDEQ did not mail its letter until July 1, 2011 (rec. doc. 41, at 2). For the purpose of the following analysis, the actual date plaintiff received the letter is immaterial.

Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) [ Zubulake I]; Zubulake v. UBS Warburg, LLC, 230 F.R.D. 290 (S.D.N.Y. 2003)[Zubulake II]; Zubulake v. UBS Warburg, LLC, 216 F.R.D. 280 (S.D.N.Y. 2003)[Zubulake III]; Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 (S.D.N.Y. 2003)[Zubulake IV].

Rule 37(e) of the Federal Rules of Civil Procedure is not implicated here because there is no indication that plaintiff maintains an “electronic information system.” See Fed. R. Civ. P. 37(e) (“Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”).

On July 26, 2012, the court ordered the parties to file a status report identifying “any areas of disagreement concerning fact discovery, including any disagreements with respect to the discovery of ESI” (rec. doc. 23, at 2). The Status Report filed by the parties on July 13, 2012 is a discovery plan, not an order issued by the court.

There is a dispute between the parties regarding the identities of the actual “members” of Valley View Rentals, LLC. In response to an interrogatory, Plaintiff stated that its “owners” are James Marshall Maddox Sr., Mary Dupuis Maddox, JMM Family Trust No.1, and MDM Family Trust No. 1 (see rec. doc. 38-2, at 30 (Pl.'s Answer to Def.'s Interrogatory No. 20)). In a later-filed affidavit, James Maddox stated that he and his wife “together form the board of managers” for plaintiff and that plaintiff “is owned by two trusts” created by [them] for the benefit of their children and grandchildren (rec. doc. 41-1, at 1). Despite its representation in the notice of removal that James Maddox is the “one member” of plaintiff, defendant now claims that the Louisiana Secretary of State identifies fourteen individuals with the surname Maddox as “members” of plaintiff (rec. doc. 38, at 3). Defendant provides no documentation in support of this claim other than email correspondence in January 17-18, 2013 in which defense counsel refers to various members of the Maddox family as “members” of plaintiff and plaintiff's counsel does not disabuse defense counsel of this understanding (rec. doc. 62, 8-10).

Defense counsel inquired about an email account possessed by Mr. Maddox at his former firm, Maddox & Associates, from which he retired in January 2008, and another at his company Port Aggregate, both of which Mr. Maddox testified at his second deposition that he did not use and would not have information relevant to this litigation (rec. doc. 38-2, at 5-7). After his deposition, Mr. Maddox confirmed that those two accounts did not have relevant information (rec. doc. 41-1, at 4).

When asked at his second deposition if he had “any idea what the automatic retention setting is” for his e-mails with his AOL account, Mr. Maddox responded that he did not (rec. doc. 38-2, at 13). Defendant suggests that any emails Mr. Maddox didn't individually “save” by moving to a folder “may have been lost through AOL's automatic deletion standard,” but it provides no factual support regarding AOL's actual email retention policy (rec. doc. 38-1, at 4).

Defendant argues that plaintiff's agreement to search for responsive e-mails in the custody of “James Maddox and he members of Valley View Rental” expanded the duty to preserve to all of plaintiff's members. As discussed at footnote 5, there is a dispute between the parties regarding the identity of plaintiff's members. The parties filed the Status Report on July 13, 2013, about 6 months before defense counsel claimed to have identified “15 members” of plaintiff in documents filed with the Louisiana Secretary of State (rec. doc. 62, at 9). Again, in its notice removal filed on October 7, 2011, defendant identified James Maddox as the only member of plaintiff (rec. doc. 1, at 3). Furthermore, at the very most, plaintiff's duty to preserve would extend only to “key players” within plaintiff. See Consol. Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. at 339. Here, the parties expressly agree that only James Maddox would be informed the “need to preserve such information related to the claims in this matter” (rec. doc. 21, at 2). The only additional persons in this litigation who are arguably “key players” within plaintiff are Mr. Maddox's wife and two sons, Jeffry Maddox and James Maddox, Jr. There is nothing in the record to indicate that Mrs. Maddox has been deposed and neither party has alleged that she is a key player. Although defendant did depose Mr. Maddox's two sons, there is no evidence before the court that those individuals are employed by or under the control of plaintiff and are likely to have non-duplicative, relevant information. See Consol. Aluminum Corp., 244 F.R.D. at 339. Defendant makes no showing that any of the other alleged members of plaintiff are “key players” to this litigation.

See Bank of Mongolia v. M&P Global Financial Services, Inc., 258 F.R.D. 514, 520-21 (S.D. Fla. 2009) (at the expense of the moving party, independent forensic computer expert to search “mirror image” of hard-drive for responsive information); Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645, 652 (D. Minn. 2002) (same); Playboy Enterprises v. Welles, 60 F. Supp. 2d 1050, 1054-55 (S.D. Cal. 1999) (same); Simon Property Group, L.P. v. mySimon, Inc., 194 F.R.D. 639, 641-42 (S.D. Ind. 2000) (same); U&I Corp. v. Advanced Medical Design, Inc., 251 F.R.D. 667, 676-77 (M.D. Fla. 2008) (same with individual sampling of hard drives).