Defendants object to Konica's request to conduct a “fishing expedition” on their devices in the absence of any evidence that ESI has been deleted from them. [ECF No. 212, PageID 3838]. Defendants contend that Konica's request to conduct an independent forensic examination of their devices would be redundant, as Mr. Bailey already conducted a forensic examination; is untimely, coming eight months after Mr. Bailey's status update; amounts to a belated amendment of the agreed protocol for Mr. Bailey's forensic examination; and would result in an unrestricted disclosure of their privileged and confidential information. Moreover, defendants argue, allowing Konica to have its own expert conduct a full forensic examination of all of their devices would render Mr. Bailey's work moot, wasting the time, money and effort already expended by Mr. Bailey, the parties and the Court. [Id., PageID 3838-40].

In reply to this latter argument, Konica argues that the Special Master's work will not have been meaningless, as Mr. Bailey will continue to be charged with managing discovery disputes and filing recommendations with the Court. But Konica does not address how Mr. Bailey's forensic examinations—and the time, effort and money used by all to arrive at a protocol for those examinations—would not be wasted if Konica is allowed to have its own expert conduct brand new forensic examinations outside of the agreed upon protocol. And Federal Rule of Civil Procedure 26(b)(1)requires the Court to consider not only whether the requested discovery is relevant, but also the proportionality factors, including “the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”[2] It is far from clear at issue juncture whether another forensic examination of each device in Mr. Bailey's custody will help resolve the issues, or whether it will only provide more of the same information Mr. Bailey's examination has uncovered. It is far from clear whether the benefit of another forensic examination of each device will justify the additional costs. While Konica would be responsible for paying its independent forensic examination, any discovery related to that new examination would also be borne by defendants.

*2 With all of these considerations in mind, the Court disagrees with Konica that requiring Mr. Bailey to provide mirror images of all of the devices in his possession is the “natural and next logical step in the discovery process in this case.” [ECF No. 205, PageID 3672]. Instead, the logical next step is to have Mr. Bailey examine the devices for indications of potential misappropriation of Konica's information and/or destruction of such information. Upon the entry of this order, Mr. Bailey will distribute a protocol for this examination to parties. Konica may request additional steps and defendants may object to any proposed steps. If the parties cannot agree on a protocol, the Court will resolve that dispute.

After Mr. Bailey examines the devices for indications of potential misappropriation of Konica's information and/or destruction of such information, he will provide a report to the Court and to the parties. The parties will be permitted to file supplemental briefs, and the Court will then determine if any mirror images of the devices must be turned over to Konica's forensic expert.

IT IS SO ORDERED.