The background regarding the Court-ordered forensic analysis is long and complicated. The Court will not rehash the details of that history now. In short, Procaps failed to implement a litigation hold and conduct adequate discovery of its own Electronically Stored Information (“ESI”). [ECF No. 341]. At Patheon's request, the Court ordered a forensic analysis of Procaps' electronic media and awarded Patheon fees. [Id.]. As the Court has repeatedly explained, the reason for this ruling was not to create a side litigation, but to provide Patheon with the discovery it seeks, and that should have been provided, in order to defend a potentially $350 million case. [ECF No. 384, p. 2].

Shortly after the Court's initial order, it was discovered that the party-selected neutral e-discovery vendor, Kroll Ontrack, Inc. (“Kroll”), had numerous actual or potential conflicts of interest and refused to continue with the forensic analysis unless Procaps signed a conflicts waiver. [ECF Nos. 422; 432, pp. 1-3]. Procaps declined to sign the waiver and the parties then selected Setec and H5, Inc. to be the e-discovery vendors. [ECF No. 432, p. 2]. Accordingly, the Court entered an amended forensic analysis order. [ECF No. 432].

Procaps has now moved for relief from some of the deadlines and procedures in the Court's Amended Order. [ECF No. 480]. Setec also requested some relief from the Court-ordered deadlines. This Order memorializes the Court's oral rulings at the hearing.

The Court hereby replaces its previous Order [ECF No. 432] regarding the forensic analysis of Procaps' electronic media. It is Ordered and Adjudged as follows:[1]

1. As soon as practicable, Procaps shall engage Setec to conduct the forensic analysis and also engage H5 to provide the hosting concerning the ESI search project detailed in this Order. Setec and H5 shall be considered neutral third-parties and shall not be deemed agents, representatives, or experts of either Procaps or Patheon, except that Procaps shall contract directly with Setec and H5 regarding the work to be performed pursuant to this Order. Setec and H5's work in connection with this Order shall not be deemed the work product of either party. However, Setec and H5 shall execute an acknowledgement of the Court's Stipulated Order for the Protection of Confidential and Highly Confidential Information. [ECF No. 86]. Setec and H5 shall start their work on the forensic analysis (and hosting) detailed in this Order as soon as practicable.

*2 2. The following persons shall be custodians whose paper and electronic files will be searched pursuant to this Order: Alain Cortesi, Rosella Del Vecchio Herrera, Alvaro Franco, Ted Green, Ruben Minski, Diego Monterroza, Andres Nitola, Osiris Norton, Jorge Ochoa, Carlos Salazar, Camilo Suarez, Luis Guillermo Velasquez, Alberto Ballestas, Yisell Pineda, Daniel Doria, Maurcio Anaya, Javier Otero, Diana Correa, and the other custodians Procaps and Patheon have agreed to (each a “Custodian” and, collectively “Custodians”). As set forth below, additional custodians may be identified and, once they are so identified, each shall be deemed a “Custodian” and each of their electronic and paper files will be searched pursuant to the terms of this Order.

3. By March 27, 2014, Procaps' counsel shall interview each Custodian and identify and disclose to Patheon any other custodians, potential sources of hard copy documents or ESI that are reasonably likely to contain relevant information, including shared ESI or hard copy documents (e.g., department files).

4. By March 28, 2014, the parties shall agree to the following:

If the parties are unable to agree to the Search Terms, a procedure for reasonably refining the Search Terms, or a production format, then the parties shall immediately raise this issue with the Court.

5. By March 28, 2014, Setec shall interview Procaps' head of IT to understand the architecture of Procaps' computer systems and Procaps' retention/backup procedures, and, within three business days of conducting this interview, shall provide a report to both Patheon and Procaps about Setec's findings in this regard. Procaps shall make its head of IT available for Setec to conduct its interview. Setec may conduct the interview in person, by telephone, by Skype, or similar video hookup. The Court will not micromanage the interview process, which will be selected by Setec.

6. By April 1, 2014, Procaps shall make available to Setec all of the sources of Procaps' ESI and documents that are relevant to this case (“Sources”) that are located in Barranquilla, Colombia. By April 7, 2014, Procaps shall make available to Setec these Sources located in Florida, California, Brazil, and anywhere else. “Sources,” includes, but is not limited to, the following:

*3 Notwithstanding the foregoing, “Sources” shall not include the following databases: Salesforce.com; SAP; or Visual Enterprise.

Within three business days after completing its collection of these Sources, Setec shall provide a report to both Patheon and Procaps that identifies all of the Sources that Setec collected.

7. By March 28, 2014, if any Custodian: (1) in good faith believes that he or she may have personal information or non-applicable business information unrelated to this litigation in the Sources identified in Paragraphs 6(a)-(c); and (2) fears that such information may be disclosed or revealed through this forensic analysis, then they may file, through Procaps' counsel, an affidavit with the Court stating and identifying the basis for their concern.

8. By May 14, 2014, Setec shall make a forensic image of each electronic source identified in Paragraph 6. Setec shall also scan all hard copy documents identified in Paragraph 6.

9. For each source of ESI identified in Paragraph 6, Setec shall attempt to recover any user-created files that were deleted after October 22, 2012[2] (“Deleted Files”). By May 19, 2014, Setec shall provide a written report to both Patheon and Procaps that identifies the file names of any of the Deleted Files that it could not recover in full, the date the Deleted Files were deleted, and from what electronic media the Deleted Files were deleted. By May 23, 2014, the parties shall file a succinct joint notice summarizing Setec's findings regarding the Deleted Files. As used in this Order, the term “user-created files” means any file created by a human being and does not include any file created by a machine or a file necessary for the normal operation of a computer system.

10. By May 9, 2014, Setec shall begin to run the Search Terms on all of the Deleted Files that it was able to recover and all of the Sources that Setec collected pursuant to Paragraph 6. By May 28, 2014, Setec shall report to the parties how many document hits resulted from each of the Search Terms. Within four business days of receiving Setec's report regarding the number of document hits that resulted from each of the Search Terms, the parties shall, if necessary, employ the procedure established pursuant to Paragraph 4 to reasonably refine the Search Terms. Setec shall then re-run any modified Search Terms on the Deleted Files and the Sources. If the parties are unable to agree on the refinement of the Search Terms, then they shall contact Chambers and the Court will hold a prompt hearing. No motions shall be filed regarding this issue.

Setec's forensic analysis shall be for the time period from January 1, 2010 to July 19, 2013 (the “Time Period”). If any ESI or document's metadata in the date created, date received, date modified, or date sent field has a date within the Time Period, then it must be part of Setec's forensic analysis.

*4 11. Promptly after Setec has completed the search set forth in Paragraph 10 and located the ESI and documents that contain the Search Terms (“Uncovered Documents”), Setec shall, if possible, provide for the de-duplication of exact copies of the Uncovered Documents. As used in this Order, the phrase “exact copies” refers to documents that have identical MD5 or SHA1 hash values. By June 25, 2014, Setec shall then provide the Uncovered Documents to Procaps' counsel for further review. Setec shall not provide the Uncovered Documents to Patheon without Procaps' prior written authorization after Procaps has reviewed the Uncovered Documents.

12. Procaps shall use the following procedure for reviewing and producing the Uncovered Documents:

13. By July 10, 2014, Procaps shall produce to Patheon: (a) all of the non-privileged, non-personal Uncovered Documents, if any, including any redacted documents; and (b) the Privilege Log and Personal Log identified in Paragraph 12. If the volume of Uncovered Documents is so large as to require additional time for Procaps to generate the production, prepare the necessary redactions, and generate the Privilege Log and Personal Log, then Procaps may file a motion with the Court seeking an appropriate extension of the deadline in this Paragraph. Any motion to extend this deadline must be based on compelling reasons bordering on a genuine emergency. As outlined in Paragraph 15, Procaps, Setec, and H5 need to take steps to make sure that the deadlines are met, including, but not limited to, increasing the number of persons assigned to the project and/or increasing the hours or workload of those participating in the forensic analysis, hosting, collection, retrieval, review, and production.

*5 14. Procaps shall pay all of Setec and H5's fees, costs, and expenses that they incur in connection with performing their work under this Order. As set out at a prior hearing, the prevailing party in this litigation may seek to recover its e-discovery costs. The Court will address the issue of whether the prevailing party is entitled to recover its e-discovery costs at that time. The Court is not now ruling on whether e-discovery costs (in general) or the costs of Setec and H5's forensic analysis (in particular) will in fact be awarded as costs to the prevailing party.

15. Setec, H5, and Procaps must staff this project sufficiently to meet the deadlines established in the Order. If they need to increase the number of persons assigned to the project or the number of hours worked in order to complete it on time, then they shall make those necessary arrangements. The Court understands that these arrangements may increase the cost of the project, but that consequence is the result of an inadequate collection process and is not something which Patheon should be penalized for here.

Procaps sought the following relief in its motion and at the hearing: (1) an extension of time to image Andres Nitola and Jorge Ochoa's devices; (2) excluding Ruben Minski and Alain Cortesi's Windows-based smart phones from being imaged; (3) exporting each Custodian's mailstores from Procaps' email servers, rather than imaging Procaps' servers; and (4) setting a trial date for this case.

Granted. Patheon agrees as to Nitola and Setec's representative is awaiting visa approval to go to Brazil to image Ochoa's devices.

Denied. It is not clear to the Court that the data on Minski and Cortesi's phones is, in fact, fully available elsewhere. Procaps and Setec shall image Minski and Cortesi's phones by the deadline set out above.

Denied as moot. First, Setec has already performed option 2 as set out in Procaps' motion. [ECF No. 480, p. 4]. Second, even if Procaps' server was imaged, it is unlikely that Setec can recover any deleted emails. [ECF No. 489, p. 3].

Denied. Because of the uncertainty and consistent delays surrounding the forensic analysis, the Court will set a new trial date after the forensic analysis is completed.

Patheon's request for Setec to take additional steps in its forensic analysis regarding the Custodians' external devices and computers is denied.

DONE AND ORDERED in Chambers, in Miami, Florida, May 5, 2014.

For the sake of completeness and simplicity, the Court has included the forensic analysis deadlines that have passed.

The Court's selection of the October 22, 2012 date relates solely to Setec's forensic examination. It is not a ruling or determination of the date when Procaps or its counsel reasonably anticipated litigation for purposes of implementing a litigation hold and preserving evidence, nor is it a ruling on the date when Procaps' work product claim begins.