In this civil action, Plaintiffs East Bridge Lofts Property Owners Association, Inc. (the Association); Creekstone Builders, Inc.; and Creekstone SC I, LLC (Creekstone SC) bring, inter alia, a claim for bad faith against Defendant insurer Crum & Forester Specialty Insurance alleging that “Defendant's refusal to properly investigate, defend, indemnify, and participate in the settlement of the Underlying Lawsuit constituted bad faith with its insureds” and breached Defendant's duty of good faith and fair dealing. (Dkt. No. 1 at 6).

Defendant served its response to Plaintiffs' first request for production on September 24, 2014. Plaintiff had requested, inter alia, Defendant's “entire claim file(s) with regard to the Underlying Litigation, the Claims, and the Judgment,” as well as “all other Documents you ever generated, obtained, or received that are in any way related to the Underlying Litigation, the Policies, or the Judgment.” (Dkt. No. 74-1 at 7, 9.) Plaintiffs assert that they only recently became aware that Defendant failed to check relevant email accounts when responding to Plaintiffs' discovery requests, and now asks the Court to direct Defendant to submit eight email accounts to a forensic examination. (Dkt. No. 94 at 9.) Defendant objects that Plaintiffs' motion is untimely and that Plaintiffs have not demonstrated the need for a forensic examination. (Dkt. No. 79 at 3-4.)

Defendant first objects that Plaintiffs' motion to compel is untimely under Local Rule 37.01(A). (Dkt. No. 73 at 1). Under this Local Rule, the movant must file the motion to compel within twenty-one (21) days “after receipt of the discovery response to which the motion to compel is directed.” Local Rule Civ. P. 37.01(A). This time may be extended if counsel are “actively engaged in attempts to resolve the discovery dispute.” Id.

Here, Defendant served its response to Plaintiffs' first request for production on September 24, 2014; however, Plaintiffs claim that they were unaware that Defendant “failed to check email accounts relevant to this case until Peter D'Alessio's (D'Alessio) deposition on May 20, 2015.” (Dkt. Nos. 94 at 4; 94-9 at 64-65) (testifying that, to his knowledge, Defendant did not search the emails of certain employees for information related to Plaintiffs' insurance claim); Plaintiffs also claim that Defendant's failure to produce a demand letter sent by Steve Keller, a principal of Creekstone, to Defendant until May 19, 2015, also evidenced Defendant's failure to search for emails related to the underlying action. (Dkt. No. 67 at 5.) Plaintiffs filed the instant motion on May 28, 2015, “after becoming aware of the omitted emails.” (Dkt. No. 94 at 4.) Although Plaintiffs' motion was filed after the close of discovery, the Court agrees that Plaintiffs' later realization of Defendant's failure to conduct an email search renders the motion timely.

*2 Defendant next objects that there is no need for a forensic examination. (Dkt. No. 79 at 4.) Defendant asserts that when it produced its claim file, it believed the file was complete other than the redaction of privileged documents. (Id. at 2-4.) After Plaintiffs took the depositions of Joseph Malfara and D'Alessio, Defendant claims that it conducted a review of their email files, as well as the email file of Pat Noll. (Id. at 2-3.) Malfara and D'Alessio were directly involved in the handling of Creekstone SC's claim,[1]and Noll was D'Alessio's supervisor. (Id. at 2-3.) Defendant states that during this email review, it “located documents relating to Creekstone and those documents are being reviewed to verify that they are in the claim file or are not otherwise responsive to a discovery request, and thus previously produced or identified as privileged.” (Id. at 3.) Defendant contends that the other email accounts that Plaintiffs seek access to are not relevant to this action. (Id. at 4.)

Plaintiffs first argue that a forensic examination of the email accounts is necessary because “[t]he evidence substantiates that the officially filed version of emails are incomplete and that probative evidence has been ignored or concealed.” (Dkt. No. 67 at 4.) Plaintiffs also contend that Defendant's admitted lack of effort to preserve its emails warrants a forensic examination. (Id. at 6-8.) Finally, Plaintiffs argue that all of the sought email accounts are relevant because they are those of “persons involved in the policy underwriting and this claim.” (Id. at 6.)

The Sixth Circuit, quoting the Sedona Principles, has held that

John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008) (quoting The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Production, Second Edition, 34, 47 (2007), available at https://thesedonaconference.org/publication/The% 20Sedona% 20Principles). In light of the expense and difficulty of forensic examinations, “courts must consider the significant interests implicated by forensic imaging before ordering such procedures.” Id. (citing Fed. R. Civ. P. 34(a) Advisory Committee Note (2006) (“Courts should guard against undue intrusiveness resulting from inspecting or testing [electronic information] systems.”)). Indeed, “mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures.” Id. (citing McCurdy Grp. v. Am. Biomedical Grp., Inc., 9 Fed.Appx. 822, 831 (10th Cir. 2001)).

Here, the Court finds that the circumstances of this case do not “warrant such a drastic discovery measure” as a forensic examination. McCurdy Grp., 9 Fed.Appx. at 831. Unlike in Orrell v. Motorcarparts of Am., Inc., a case heavily relied on by Plaintiffs, there is no evidence that Defendant's computers have crashed or been wiped clean. No. 3:06-cv-418, 2007 WL 4287750, at *7 (W.D.N.C. Dec. 5, 2007). In addition, in Koosharem Corp. v. Spec Personnel, LLC, the magistrate judge ordered a forensic examination only after plaintiffs served document requests for particular emails and, in response, defendants “produced some 1,936 pages of emails,” none of which were “an accurate copy of the original email.” No. 608-cv-583, 2008 WL 4458864, at * 1 (D.S.C. Sept. 29, 2008). The court noted that “the date and time stamp on every email ha[d] been modified to reflect the dates the emails were compiled rather than the dates they were sent,” that “many emails [were] missing their attachments,” and further, that many emails contained “irregularities.” Id. Here, the Court has no reason to question the authenticity of Defendant's emails.

*3 Even when a forensic examination is not warranted, the Federal Rules require a party to conduct a reasonable search of its files to determine whether it has responsive documents in its possession, custody or control. E.g., Hock Foods, Inc. v. William Blair & Co., LLC, No. 09-2588, 2011 WL 884446 at *8 n.64 (D. Kan. Mar. 11, 2011) (listing cases); Moore v. Chertoff, 255 F.R.D. 10, 22 (D.D.C. 2008); see also Fed. R. Civ. P. 26(g) (requiring a “reasonable inquiry”). Thus, a party cannot meet its discovery obligations by “sticking its head in the sand” and claiming ignorance. In re Indep. Serv. Org. Antitrust Litigation, 168 F.R.D. 651, 653 (D. Kan. 1996). A party conducting a search of electronically stored information (ESI) has the burden of demonstrating that its methodology was reasonable. E.g., Smith v. Life Investors Ins. Co. of Am., No. 2:07-cv-681, 2009 WL 2045197 at *7 (W.D. Pa. July 9, 2009). An “explanation of the search terms and procedures used would be a large step in that direction.” Id.

Defendant states that it has searched three of the requested email accounts, and is now sorting through the documents that are possibly related to this action. (Dkt No. 79 at 3.) However, it has not revealed any of the search terms and procedures used in the email search. In addition, although Defendant objects to the relevancy of five of the requested accounts, it does little more than assert that those accounts are of persons who did not handle Creekstone's claim. (Id. at 5-6.) Without more to substantiate Defendant's assertion, the Court finds that Plaintiffs have established the relevancy of the requested accounts and directs Defendant to include all eight email accounts in its search.[2]Because Defendant has provided little detail as to how it conducted its prior search of three of the email accounts, the Court cannot determine whether its methodology was reasonable. Thus, Defendant will need to confer with Plaintiffs as to its search methodology, which should include the additional five email accounts. If the parties cannot agree on a proposed ESI protocol, they will need to brief this issue.

For the reasons set forth above, the Court DENIES Plaintiffs' motion for a forensic examination, (Dkt. No. 67). Rather than compel Defendant to submit to a forensic examination, the parties are encouraged to confer and attempt to resolve this dispute. However, if they cannot, Defendant will have seven (7) days from the date of this Order to file a proposed ESI protocol that explains how Defendant will search for documents responsive to Plaintiffs' discovery requests. Plaintiffs will have four (4) days thereafter to file a response to the proposed ESI protocol and suggest alternatives.

AND IT IS SO ORDERED.

Malfara is no longer employed by the Defendant. (Dkt. No, 79 at 1.)

This would include Joseph Malfara; Peter D'Allesio; Pat Knoll; Don Campbell, Quality Control Officer; Tom Trezise, Former Vice President; Steve Eiserman, Former VP of claims; Doug Libby, Former CEO; and Bernard Hill, underwriter.