HABERSHAM PLANTATION CORPORATION, Plaintiff, v. Bernard MOLYNEUX, Country Pine, Inc., ACP Home Furnishings, Inc., The Bernard Molyneux Collection, Inc., Country Pine Wholesale, Inc., MGS Pine Products USA, Inc., and Antiques & Country Pine of Buckhead, Inc., Defendants Case No. 10-61526-Civ-DIMITROULEAS/SNOW United States District Court, S.D. Florida Signed June 20, 2011 Counsel Cameron M. Nelson, David W. Hannon, Richard D. Harris, Kevin J. O'Shea, Greenberg Traurig, LLP, Chicago, IL, Marlene Koch Silverman, Greenberg Traurig PA, Miami, FL, for Plaintiff. Jason H. Nash, John T. Williams, Hinkhouse Williams Walsh, LLP, Chicago, IL, Matthew Scott Nelles, Broad and Cassel, Fort Lauderdale, FL, for Defendants. Snow, Lurana S., United States Magistrate Judge ORDER *1 THIS CAUSE is before the Court on the plaintiff's Motion to Compel Document Production and Identification of Witnesses (Docket Entry 70) which was referred to United States Magistrate Judge Lurana S. Snow. The motion is fully briefed and ripe for consideration. The motion states that the plaintiff deposed defendant Bernard Molyneux on April 25, 2011. During the deposition, Mr. Molyneux testified to matters which had not been revealed by the defendants' prior discovery responses: that the defendants used a Quickbooks database; that the defendants had a CD and a number of flash memory cards with product pictures stored on them, which had not been produced during discovery; that Mr. Molyneux employed a bookkeeper who paid the defendants' bills, and that the defendants used a customs broker to handle the importation of the goods they sell. The plaintiff asks the Court to compel the defendants to provide (1) a copy of the Quickbooks database and the forensic data associated therewith; (2) electronic copies of the images on the CD and the flash memory cards which preserve the original metadata; (3) the name of the bookkeeper so the plaintiff can depose that employee, and (4) the identity of the customs broker so that the plaintiff may seek third-party discovery. The plaintiff contends that the defendants' prior discovery responses resulted in production of only a few documents, and the statement that they had no other documents such as sales records, shipping records, purchase records and customs records. When plaintiff's counsel conferred with counsel for the defendants in February 2011, prior to filing a motion to compel better discovery responses, counsel for the defendants asserted that, other than the few documents produced, additional records did not exist. Accordingly, the plaintiff did not file a motion to compel. The plaintiff served a second set of Requests for Documents and Things on February 9, 2011, to which the defendants did not respond. On April 25, 2011, immediately after Mr. Molyneux's deposition, the plaintiff filed a motion to compel document production and interrogatory responses. The defendants filed a motion to strike the motion to compel since the plaintiff had not mentioned the motion to compel at the deposition, and had mischaracterized Mr. Molyneux's testimony in the motion to compel. The Court struck the motion to compel since the plaintiff's only pre-filing meeting to confer about the deficiencies of the discovery responses had occurred in February, more than 30 days before the motion to compel was filed. The instant motion to compel states that in response to the plaintiff's third-party subpoenas, documents were produced in late March 2011 demonstrating that the plaintiff had an electronic database of their product sales. In response to the defendants' motion to strike the April 25, 2011, motion to compel, the plaintiff produced computer-generated invoices from the defendants to other customers, which appeared to be from Quickbooks. The defendants' reply in support of the motion to strike asserted that this discovery did not relate to the products at issue. *2 The plaintiff provides the transcript of Mr. Molyneux's testimony in support of the instant motion to compel. (DE 74, sealed exhibits to the motion to compel, Exhibit H, hereinafter “TR”) The motion states that the defendant testified about the existence of the Quickbooks database (TR 215-219, 226-227), which contained the wholesale files (TR 216-218). Mr. Molyneux testified that he searched all of the Quickbooks files but could not find responsive documents, He could not describe how the files were organized or how he searched them. (TE 226-230) He conceded that the Quickbooks database may also contain the defendants' purchases of the accused products, but could not describe where that type of information was kept. (TR 161-167) Nor could he explain how he had failed to find the invoice to Kate & Co. produced through third-party discovery. (TR 228-229) He could not testify about whether his company computer had a word processing program, stating that he had “no clue about computers.” (TR 235) He also testified that he did not believe that he had been asked to produce the orders he sent to manufacturers, the customs records and shipping records. (TR 161-168) On the day of Mr. Molyneux's deposition, the defendants also produced their expert's rebuttal opinion (sealed DE 74, Exhibit I), in which the defendants' expert stated that the defendants had not retained all of their electronic sales records (Id., pp. 18-19) The plaintiff contends that in light of Mr. Molyneux's inability to search his own computer records, and the admission that the records had not been retained on the computer, the remaining Quickbooks records must be produced along with the forensic data associated with the database. When counsel for the plaintiff conferred with defendants' counsel prior to filing the instant motion to compel, the defendants responded that the court's Order striking the original motion to compel precluded the plaintiff from seeking any further discovery. The motion to compel asserts that the instant motion is timely since the grounds for the motion arose on April 25, 2011, when Mr. Molyneux testified about the Quickbooks database, the CD and flash memory cards containing images of the defendants' products, and stated that he employed a bookkeeper and a customs broker. When the plaintiff's counsel conferred with counsel for the defendants, seeking information identifying the bookkeeper and the dates she would be available for deposition, the defendants refused, stating that the plaintiff has not made such a discovery request previously. Defendants also asserted that the bookkeeper did not have any relevant knowledge since she simply paid the bills. The plaintiff argued that its Interrogatory No. 13 asked for the names of all persons having knowledge of the defendant's costs. The bookkeeper should have been identified. The motion to compel asserts that Mr. Molyneux testified that he knew the bookkeeper used the computer for bookkeeping, but did not know anything about that. He did know that she paid and registered the bills. The plaintiff contends that such activities would cause her to know the defendants' costs. Since the defendants's expert computed their damages by subtracting the cost of goods sold and operating expenses from the sales, they cannot now refuse discovery into those costs, which included advertising, credit card fees, repairs and maintenance, supplies and warehouse. (DE 74, Exhibit P, p. 13). The plaintiff argues that the defendants also should have identified their customs broker as someone who had knowledge of the defendants' costs in response to Interrogatory No. 13. The customs broker would have documents which demonstrate the amount of imported furniture and the shipping fees. In response to the instant motion to compel, the defendants contend that the plaintiff did not learn new facts for the first time on April 25, 2011, and is improperly trying to relitigate a motion to compel which the Court has already denied. On April 25, 2011, the plaintiff filed its first motion to compel which referred documents produced by third parties which confirm the existence of an electronic database “which appears to be Quickbooks.”(DE 53, p. 4) The Court's Order striking the motion noted that the thirty day period for filing a motion to compel would have started upon receipt of this third-party discovery. The plaintiff admitted that the discovery had been received in late March 2011. *3 The response states that the defendants have diligently searched for documents responsive to the plaintiff's requests and have no documents not already produced. Mr. Molyneux testified that the images of the products provided to the plaintiff were taken from the CD. The plaintiff has not demonstrated that the four documents received from third parties are currently in the defendants' possession. Indeed, the third-party documents demonstrate that these documents were not retained by the defendants in the years before the lawsuit was filed. Nothing in the expert rebuttal report states that the defendants deleted or purged their records. The report simply states that the records were not retained. The defendants also assert that the plaintiff has already taken the Rule 30(b)(6) deposition of the defendants' corporate representative, Mr. Molyneux, concerning all relevant costs related to the furniture products at issue. He testified that he personally makes all payments to the Chinese furniture manufacturer of the allegedly infringing furniture and that the bookkeeper is not responsible for payments to the Chinese manufacturer. (TR 299-300) He testified that the bookkeeper does not track the defendants' sales of furniture, she merely pays the bills. (TR 302) The defendants argue that the plaintiff's speculation about the bookkeeper's knowledge conflicts with Mr. Molyneux's undisputed testimony that the bookkeeper does not have any information about the products at issue. Accordingly, the bookkeeper's identity would not be responsive to Interrogatory No. 13, which is limited to persons with knowledge regarding “each of the Defendants Known Relevant Products.” (DE 71, Exh O) The bookkeeper would only have knowledge of general overhead costs. The plaintiff did not serve an interrogatory seeking the identity of the defendant's bookkeeper. Moreover, the defendant's expert calculations are all based on documents produced to the plaintiff in the case (DE 74, Exhibit J, Attachment B), accordingly the defendants have not refused to provide the data upon which the calculations were made. Similarly, the plaintiff never served a discovery request seeking the identity of the defendant's customs broker, and did not ask for it during Mr. Molyneux's deposition. The plaintiff did not discuss this issue while conferring before filing the instant motion. The defendants ask the Court to deny the motion to compel in its entirety. The plaintiff's reply asserts that the defendants have not provided a valid basis for the most basic discovery requests—the identity of witnesses. Mr. Molyneux repeatedly testified that he knew nothing about the computer bookkeeping records, that the bookkeeper paid the bills and he was not aware of how that was accomplished. Clearly the bookkeeper has relevant knowledge of the costs to the defendants of the design, manufacture, promotion, sale and distribution of the relevant products. Similarly, the defendants' customs brokers will have records of the imported products, since they will have records of the importation and subsequent distribution of the accused products. The plaintiff's reply also contends that the Quickbooks database and associated forensic data with the hard drive will reveal how many products were sold, forming the basis for the damages calculations. Thus whether the lack of relevant documents is the result of Mr. Molyneux's failure to conduct a thorough search or whether it is the result of the data not being “retained” for whatever reason, a forensic analysis of the material on the hard drives will reveal a better picture of the financial data. Finally, the plaintiff asserts that the motion is timely, since it was only during Mr. Molyneux's deposition that the defendants finally admitted that they used a computer records system and that it was in fact Quickbooks. A. Witness Identification *4 The plaintiff seeks the identification of the defendants' bookkeeper since Mr. Molyneux testified that she paid the bills and used the computer to do so. The defendants assert that the bookkeeper only paid the bills for overhead expenses, which are not relevant to the accused products. The plaintiff contends that the bookkeeper's records must be investigated since the defendants' expert calculated damages by subtracting costs and operating expenses, such as credit card expenses, from the gross sales. Mr. Molyneux testified that he personally paid the manufacturer's invoices for the accused products manufactured in China. (TR 300). The bookkeeper paid “bills.” (TR 304). He testified that he began having goods manufactured in China in 2003. (TR 178, 297)[1] He also imported furniture from England. (TR 15, 154-156, 179)[2] Mr. Molyneux testified that he paid the shipping costs from China to the United States. (TR 164) He stated that he also paid the customs duties and paid for delivering the goods to the defendants' stores. (TR 155-156, 166-168) Interrogatory 13 sought, among other categories of costs, the costs associated with the distribution of each accused product. The Court finds that Mr. Molyneux's testimony that he paid all the bills associated with the manufacture, shipping, customs duties and delivery to the stores demonstrates that the identity of the bookkeeper would not be responsive to Interrogatory No. 13. Since Interrogatory No. 13 does not seek the identity of persons with personal knowledge of general operating expenses, such as credit card sales, repairs and maintenance, the identity of the bookkeeper would not be responsive to the interrogatory. The Court will not compel the defendants to reveal the identity of the bookkeeper. The Court finds, however, that the defendants' customs broker would have knowledge of the costs of shipping, importing into this country and distributing the furniture, since the broker handled those arrangements for the defendants. Accordingly, the identity of the customs broker is responsive to Interrogatory No. 13. Since the defendants did not reveal the fact that they employed a customs broker until the April 25, 2011, deposition, the motion to compel the identity of the customs broker is timely. The Court will grant the motion to compel the defendants to identify their customs broker. Additionally, the Court will permit the plaintiff to seek discovery from the broker beyond the close of the discovery period. B. Quickbooks Database, CD and Flash Memory Cards The defendants assert that since third party discovery revealed computerized records in March, the plaintiff's instant motion to compel is untimely. However, defendants's counsel, when apprised of the records, stated that they were not related to the products at issue. (DE 53, Exhibit H., p. 2) Until the April 25, 2011, deposition, the defendants did not reveal that Mr. Molyneux had searched the Quickbooks computerized records looking for documents requested in the case. Accordingly, the Court finds that the motion is timely with respect to the Quickbooks database. *5 The defendants contend that since the computerized records were not retained, they are no longer on the computer. Accordingly, a search of the hard drive would not reveal additional documents. The plaintiff argues that Mr. Molyneux's admittedly untutored search of the computer is not evidence that a better search would not reveal additional relevant documents. Even if documents have not been retained, a forensic examination of the hard drive may be able to reconstruct deleted files. The Court notes that neither party has cited any legal authority discussing forensic court-ordered computer examinations. The Court “must make a factual finding of some non-compliance with discovery rules....” U&I Corp. v. Advanced Medical Design, Inc., 251 F.R.D. 667, 674 (M.D. Fla. 2008)(ordering a forensic computer examination, finding that the plaintiff admitted that after long delays it still had not produced all of the responsive documents on its computers, and was unable to explain why it had not); Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir. 2203) (a court must make written findings when a party seeks to examine computer databases even though the responding party had stated that all of the relevant material from the databases had been produced.) Mr. Molyneux testified that he went through every Quickbooks file on his computer to search for responsive documents, but found no responsive documents in Quickbooks. (TR 216, 226-227). The documents he produced were all copies of papers stored in filing cabinets and boxes in the office and the warehouse. (TR 240-242). The defendants' expert, noting that the defendants were small businesses whose records were kept on paper and that computer entries were not retained, based her damages calculations on the documents which had provided to the plaintiff. (DE 74, Exhibit I, pp. 18-19, Exhibit P, p. 7) The Court finds that the plaintiff has failed to demonstrate that the defendants did not comply with discovery rules. While Mr. Molyneux admits to limited computer skills, he did perform a file-by-file search of Quickbooks for responsive documents. He also searched for documents in his office and warehouse and produced all he found. He provided the same documents to his expert witness for the damages analysis. The Court will deny the motion to compel a forensic analysis of the defendants' computer. Similarly, Mr. Molyneux testified that documents he produced showing various models of furniture were take from the CD (TR 247-248) while others were copies of papers stored in the office and warehouse (TR 251-253). The pictures on the CD were used to produce his catalog. (TR 143) The Court finds that the plaintiff has not demonstrated that the defendants engaged in discovery violations, related to images of the furniture, which require a comparison of the documents produced to the original CD. The Court will deny the motion to compel production of the CD. Mr. Molyneux also testified that in general he had millions of pictures on flash cards, although only a few of them are stored on the office computer. (TR 143-145) Those were taken with a camera in the store and were transferred to the computer in order to e-mail them to requesting customers. (TR 145, 238) The Court finds that the plaintiff has not demonstrated that the defendants engaged in discovery violations, related to images of the furniture, which require a review of Mr. Molkyneux's millions of photographs on flash cards. The Court will deny the motion to compel production of Mr. Molyneux's flash cards. With the Court being advised, it is hereby *6 ORDERED AND ADJUDGED that the motion to compel is GRANTED IN PART and DENIED IN PART as follows: 1. The motion is GRANTED with respect to the identity of the defendants' customs broker or brokers. The defendants shall, on or before June 30, 2011, provide the plaintiff with the name, business address and business telephone number of the defendants' customs broker(s). The plaintiff's discovery from the customs broker(s) must be completed no later than August 5, 2011. 2. The motion is DENIED for all other items the plaintiff's motion asks the Court to compel. DONE AND ORDERED at Fort Lauderdale, Florida, this 20th day of June, 2011. Footnotes [1] The parties have not informed the Court of the relevant period for which the infringement is alleged to have occurred. The Court notes that the defendants' expert was instructed to make two different calculations: one beginning in 1995 and one beginning in August 2007. (DE 74, Exhibit P., p.3, n. 3) [2] In briefing the instant motion, neither party discussed furniture imported from England.