I. INTRODUCTION

*1 On September 27, 2019, Plaintiff and Counterdefendant United Artists Corporation (“UAC”) filed its Motion to Compel Defendants' and Counterclaimants' Further Search for Responsive Documents to Plaintiff's First Set of Requests for Production of Documents. (“Motion,” ECF No. 78.) In support of the Motion, UAC filed the Declaration of Daniel Flores (UAC's in-house counsel) and accompanying exhibits A-C (Flores Decl., ECF No. 78-2), the Declaration of Paul Bost (UAC's retained counsel) and accompanying exhibits D-H (Bost Decl., ECF No. 78-3), and its [Proposed] Search Protocol for Defendants' Further Search for Responsive Documents to Plaintiff's First Set of Requests for Production of Documents (Proposed Search Protocol, ECF No. 80-1). On September 30, 2019, Defendants and Counterclaimants United Artist Studios LLC, United Artist Film Festival LLC, XLI Technologies, Inc., XL141 L.L.C., and James P. Schramm (collectively, “UAS”) filed their Opposition to Plaintiff's Motion to Compel Further Search. (“Opposition,” ECF No. 79.)

At issue is UAC's request that the Court order UAS to conduct a further search for documents responsive to UAC's First Set of Requests for Production of Documents in compliance with UAC's Proposed Search Protocol, including the appointment of an independent expert to collect, search, and review UAS's emails, texts, and hard drive(s). (Mot. 1.) UAS opposes the Motion, offering instead to conduct a further search of its own. (Opp'n 1–2.)

Having considered the parties' briefs, the related record, including the evidentiary hearing where Mr. Schramm testified regarding the search methodology employed by UAS in response to UAC's discovery requests, the Court GRANTS IN PART and DENIES IN PART UAC's Motion.

II. BACKGROUND

The background of UAC's claims against UAS and UAS's counter claims against UAC is provided in detail in the Court's Order re: Motion for Preliminary Injunction against Defendants (PI Order, ECF No. 41),[1] and the Court does not repeat it here. Briefly, UAC brings trademark infringement and related claims against UAS for the improper use of its “United Artists” mark in connection with, among other things, UAS's online film festival. (Id. at 3–8.) UAS denies the allegations and brings unfair competition and related counterclaims against UAC. (Id. at 9–10.)

Early in the litigation, UAC sought and obtained a preliminary injunction against UAS, enjoining UAS from “using any of its trademarks, implying [UAC]'s approval or endorsement; operating under the name UA Studios or UA Film Festival, or representing that [it is] in any way sponsored by [UAC].” (PI Order 12.) After the entry of the preliminary injunction, and upon belief that UAS had violated the injunction, counsel for UAC requested in writing that UAS “redesign the websites” on the domain names at issue. (Bost Decl. ¶ 4, Exh. F.) In response, UAS agreed and “made the necessary changes to avoid such a motion.” (Id.)

*2 The undersigned Magistrate Judge first became involved in the parties' discovery disputes on August 12, 2019. At its informal discovery conference of that date, UAC sought an order compelling UAS to provide responses to UAC's discovery requests, including as relevant here, UAC's First Set of Requests for Production of Documents. Upon admission by UAS that it had not provided any responses or documents to UAC's discovery responses, the Court ordered UAS to provide written responses to UAC's interrogatories and document requests and produce documents no later than August 14, 2019, and serve a privilege log no later than August 16, 2019. (First Disc. Order, ECF No. 55.)

When these dates came and went without compliance by UAS, UAC again sought this Court's intervention to address UAS's failure to provide responses and produce documents and seeking contempt, non-monetary, and reasonable expenses including attorneys' fees against UAS. Because UAC's motion could result in the award of sanctions pursuant to Local Rule 37(a)(5) and/or Local Rule 37(b), thereby necessitating that UAS be given an opportunity to be heard, the Court sua sponte bypassed it informal discovery dispute resolution requirement and ordered the parties to proceed to briefing and oral argument, setting a hearing date of August 28, 2019. (Order Setting Disc. Hr'g, ECF No. 57.)

At the August 28, 2019 hearing, UAS conceded that it still had not produced any documents or provided a privilege log as required by the First Discovery Order. (Second Disc. Order 7, ECF No. 61.) As a result, the Court ordered UAS to, among other things, “conduct a diligent search and reasonable inquiry of all available sources for documents responsive to UAC's requests for production of documents, and produce all responsive, nonprivileged documents within its possession, custody, or control” by no later than September 3, 2019. (Id. at 21.) In addition, the Court granted UAC's request for attorneys' fees. (Id. at 20.)

On September 6, 2019, the Court held another informal discovery conference to resolve UAC's concerns that UAS's discovery responses failed to comply with the Second Discovery Order in that UAS's supplemental responses purportedly were insufficient. (Third Disc. Order, ECF No. 67.) There, the Court questioned UAS's counsel regarding the nature and extent of search conducted by UAS in response to UAC's discovery requests, but UAS's counsel was unable to provide a cogent response. On that basis, the Court ordered that Mr. Schramm, in his capacity as an individual defendant and as custodian of records for the business entity defendants (as reported by UAS's counsel), appear in Court the week of September 9–13, 2019 for an in-court examination under penalty of perjury regarding the search he and the business entity Defendants conducted in response to UAC's discovery requests. (Third Disc. Order 4–5.)

On September 19, 2019, the Court held an evidentiary hearing regarding UAS's efforts to locate documents and information responsive to UAC's discovery requests. (Fourth Disc. Order, ECF No. 73; Tr. Evid. Hr'g, ECF No. 76.) Having heard and considered Mr. Schramm's sworn testimony regarding his search efforts on behalf of UAS, the Court ordered the parties to meet and confer regarding whether a further search for responsive documents would be necessary and, if so, the nature and extent of such search so that a protocol for a further search could be crafted (“Search Protocol for the Further Search”). (Fourth Disc. Order 1–2.) The Court further ordered that, if the parties were unable to agree on whether a further search was necessary or on the parameters of the Search Protocol for the Further Search, they were each to file independent Motions re: Further Search providing their positions regarding whether a further search was necessary and, if so, a Proposed Search Protocol for the Further Search. (Id. at 2.)

*3 The parties were not able to reach agreement. UAC filed the instant Motion. Despite opportunity to do so, UAS did not file a motion, and instead filed its Opposition to UAC's motion.

UAC contends that a further search is necessary because Mr. Schramm's sworn testimony “provides clear evidence as to [UAS's] seriously deficient discovery efforts” and was “unclear, evasive, and demonstrably false.” (Mot. 1.) In addition, UAC submits a Proposed Search Protocol which provides for (1) a forensic examination (paid for entirely or mostly by UAS) of UAS's emails, text messages, and hard drives, to be conducted by an independent expert who specializes in electronic discovery in order to collect, copy, and search for further documents, based upon specified parameters, followed by a review by UAS's counsel of the collected documents for responsive, nonprivileged documents; and (2) consent by UAS to a subpoena to GoDaddy.com, LLC (“GoDaddy”) to produce emails stored in UAS's email accounts using the domains “@unitedartistfilmfestival.com,” “@unitedartiststudios.com,” and “@uafilmfestival.com.” (Proposed Search Protocol 1-13.)

Without conceding that a further search is necessary, UAS offers, as an alternative to UAC's Proposed Search Protocol, “a less intrusive and cost effective measure” that would entail (1) a further attempt by UAS to recover emails from PayPal and GoDaddy and a search of any such emails for responsive documents; (2) a further search of UAS's cell phones using UAC's proposed keywords; and (3) a further search of UAS's hard drive using UAC's proposed keywords. (Opp'n 2–3.) UAS argues that, if the Court orders a forensic examination, the cost should be borne entirely by UAC as the demanding party. (Id. at 6.)

Fully briefed, the matter stands ready for decision.

III. ANALYSIS

A. Legal Standards

Rule 34 of the Federal Rules of Civil Procedure (“Rule 34”) permits a party to “copy ... electronically stored information.” Fed. R. Civ. P. 34(a)(1)(A). However, Rule 34 is limited by Rule 26(b)(1) of the Federal Rules of Civil Procedure (“Rule 26”), which sets forth the permissible parameters of discovery:

Fed. R. Civ. P. 26(b)(1).

While permissible discovery is broad, the scope of permissible discovery is not without bounds.

Fed. R. Civ. P. 26(b)(2)(C).

*4 In addition, Rule 26 provides specific limitations on electronically stored information, such as that at issue here:

Fed. R. Civ. P. 26(b)(2)(B).

B. Discussion

1. The Scope of UAC's Discovery Is Proper.

UAS interposes multiple objections in its Supplemental Responses to UAC's First Set of Requests for Production of Documents, including overbreadth, burden, oppression, and vagueness. (UAS's Supp. Resp. to UAC's Doc. Request, ECF No. 62-2.) In its Opposition, UAS argues that the requests are an unreasonable intrusion into UAS's personal and business life. (Opp'n 2.) However, although not asserted by UAC here, the viability of those objections is questionable given that UAS failed to serve its discovery responses on time and thus could be found to have waived objections in the first instance. See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (“It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection.”) (citing Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981)).

Notwithstanding, even if UAS's objections were timely, they are without merit. Its objections of burden, oppression, and overbreadth are entirely conclusory and do not contain the required explanation (generally through affidavit) regarding how the requests are overly burdensome or oppressive. General or boilerplate objections “that state that a discovery request is ‘vague, overly broad, or unduly burdensome’ are, standing alone, meaningless and fail to comply with ... Rule 34's requirement that objections contain a statement of reasons.” Bank of Mong. V. M&P Global Fin. Servs., 258 F.R.D. 514, 519 (S.D. FI. 2009). Courts find meritless objections that are not supported by any evidentiary declarations. See, e.g., Paulsen v. Case Corp., 168 F.R.D. 285, 289 (C.D. Cal. 1996); see also McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (objections that document requests were overly broad, burdensome, oppressive, and irrelevant were insufficient to meet objecting party's burden of explaining why discovery requests were objectionable); Panola Land Buyer's Ass'n v. Shuman, 762 F.2d 1550, 1559 (11th Cir. 1985) (conclusory recitations of burden are not sufficiently specific to demonstrate why requested discovery is objectionable). More importantly, in its Opposition, UAS does not object to the scope of searches in the Proposed Search Parameter; to the contrary, UAS offers to conduct the searches as proposed by UAC, objecting only to UAC's proposal that an independent expert, instead of UAS itself, conduct the searches. (Opp'n 2–3.)

*5 UAS's concerns regarding the intrusive nature of UAC's discovery seems to center on fears that UAC will disclose its confidential information, as purportedly evidenced by UAC's public disclosure, through the filing of its Motion, of UAS's bank account numbers. (Opp'n 2.) But UAS overplays its hand. To begin with, as UAC explains, the documents were provided to UAC by UAS in the course of discovery without any confidentiality designation under the operative protective order (Protective Order, ECF No. 70). (UAC Application to Withdraw and Replace 2, ECF No. 80.) Moreover, upon being informed by UAS that the documents should have been redacted, UAC expediently—in two court days—apologized to UAS and the Court and asked the Court to replace the documents with redacted documents. (Id.) In any event, confidentiality is not a basis for withholding information in the ordinary course of discovery, especially with a protective order in place to restrict its access and use. See, e.g., Harper v. Blazo, No. 1:17-cv-01717-LJO-EPG (PC), 2019 U.S. Dist. LEXIS 140231, at *27 (E.D. Cal. Aug. 19, 2019) (“Defendant may not legally withhold documents from discovery on the basis of confidentiality. Instead, he must move the Court for a protective order.”).

For the foregoing reasons, the Court concludes that the scope of UAC's discovery is proper in light of the claims and counterclaims at issue here.

2. The Court Is Unable To Conclude that UAS's Search for Responsive Documents Was Reasonable.

In response to UAC's seventy-five document requests, UAS has produced fifty-six pages of publicly-available internet printouts reflecting corporate information and screenshots of two emails. (Mot. 1.) In light of UAS's purported operation of “an ‘online’ film festival and ... a multimedia entertainment ‘conglomerate,’ ” this leads UAC to question whether UAS has “undertake[n] a diligent and good faith search” in response to its document requests. (Id.)

While a party's “mere suspicion” that a document production is incomplete is not a recognized ground for compelling discovery, where there is reason to believe that the production is incomplete, a court may require a certification from the producing party that, after a reasonable search, the producing party has determined the information requested either does not exist or has been produced. See, e.g., Meeks v. Parsons, No. 1:03-cv-6700-LJO-GSA, 2009 U.S. Dist. LEXIS 90283, at *8–9, 2009 WL 3003718, at *3 (E.D. Cal. Sept. 18, 2009 2009) (citing Gray v. Faulkner, 148 F.R.D. 220, 223–24 (N.D. Ind. 1992)). This obligation is satisfied by “a sworn statement that a party has no more documents in its possession, custody or control.” Id., 2009 U.S. Dist. LEXIS 90283, at *9, 2009 WL 3003718, at *3 (quoting Gray, 148 F.R.D. at 224). In addition, a statement disavowing existence of a document known to have been in the party's possession, custody, or control at one point in time, does not suffice; the party must adequately explain the disposition of such documents. Id.

However, even if so ordered, the testimony obtained from Mr. Schramm at the evidentiary hearing casts significant doubt as to whether a sworn statement by UAS could be relied upon to establish that it conducted a reasonable search. As detailed below, Mr. Schramm's testimony raises many questions about the reasonableness of UAS's searches.

a. The Court Is Unable To Conclude That UAS's Search For Emails Was Reasonable.

UAC contends, and UAS does not dispute, that Mr. Schramm's testimony regarding what email addresses he searched was unclear. (Mot. 4; Opp'n passim.) The Court agrees. As UAC summarizes:

*6 (Mot. 2.)

The Court also agrees with UAC that Mr. Schramm's testimony regarding the search criteria he used to search emails was “at best, confusing and vague or, at worst, evasive and disingenuous.” (Id.) As UAC summarizes:

(Id. at 2–3.)

UAC also argues that UAS's minimal email production—screenshots of two emails—belies Mr. Schramm's testimony that he conducted the thorough search to which he testified. (Id. at 3.) Specifically, UAC questions UAS's failure to produce copies of UAC's demand letters sent to UAS and UAS's responses, despite the inclusion of terms purportedly searched by Schram. (Id.) In addition, UAC questions the absence in UAS's production of emails confirming the registration of domain names for websites operated by UAS or any emails evidencing business that was conducted by UAS. (Id.) The Court is not persuaded by this argument because of its obvious flaw: it ignores the possibility that UAS does not have such documents because they were destroyed or otherwise unavailable for a legitimate reason.[2] Still, the solution to this problem would be to order UAS to provide a sworn declaration regarding the nature and scope of its search and, to the extent documents that once existed no longer exist, the reason for such. But, as the Court already discussed, Mr. Schramm's testimony at the evidentiary hearing counsels against reliance on such an attestation by UAS.

UAC finally argues that Mr. Schramm's testimony suggests UAS may have taken actions that resulted in the deletion of the email accounts and other documents. As UAC summarizes:

*7 (Id. at 8.)

UAS contends that UAC's Motion “is based on speculation”[3] (Opp'n 4) and argues that UAS has not attempted to conceal any discovery, has cooperated in all phases of the case, has supplied discovery responses and paid the court ordered sanctions for its untimely responses, and has produced all documents in its possession. (Id. at 5.) In addition, UAS argues that Mr. Schramm traveled several hundred miles to attend an evidentiary hearing and testified to his efforts, under oath. (Id.)

The Court agrees with UAC that Mr. Schramm's explanation of UAS's methodology for its email searches leaves many unanswered questions. Indeed, the transcript of the evidentiary hearing reveals that Mr. Schramm answered very few questions cogently and credibly. (Bost Decl., Exh. E, passim.) UAS's counsel's response was to question the Court whether it is “reasonable for someone to remember each single keyword with respect to 76 questions ... [b]ased on a search he conducted weeks ago.” (Id. 63-64.) Setting aside for the moment that the Court ordered Mr. Schramm to appear for an evidentiary hearing specifically instructing him to “be prepared to answer questions ... regarding the search he and the business entity Defendants conducted in response to [UAC's] discovery requests” so that the Court could “ascertain whether further searches for responsive information and documents are necessary” (Third Discovery Order, 4-5), Mr. Schramm's inability to recall “each single keyword” is the least of the Court's concerns. The fact is that Mr. Schramm recalled next to no details of his search and was confused or could not explain the little that he did recall. (Bost Decl., Exh. E, passim.) Whether it is because Mr. Schramm genuinely and innocently did not recall his search endeavors, or because he was attempting to hide this information from UAC and the Court, the result is the same: without having clarity regarding how the email search was conducted, the Court is unable to conclude that the email search was reasonable.

b. The Court Is Unable To Conclude That UAS's Search For Text Messages Was Reasonable.

UAC contends, and UAS does not dispute, that Mr. Schramm's testimony regarding UAS's search for text messages was unconvincing. (Mot. 4; Opp'n passim.) The Court agrees. Mr. Schramm first claimed that he searched for text messages and that there were none (Bost Decl., Exh. E, 29:2–13), but immediately thereafter stated that there were no phone numbers to search and called into question his own testimony as to whether he had even conducted a search in saying: “if I looked at any phone numbers” it would have been “an old company number” (id. at 30:2–4) (emphasis added), This testimony leaves open the question whether other relevant phones, including the one he used during this lawsuit (Bost Decl. ¶ 5), were searched.

*8 In addition to the above, Mr. Schramm testified: “I want to be very clear with you now. I did everything I could. I take this very seriously. I don't mess around with orders. Whether I agree with them or not, I don't mess around with them. I looked everywhere. I checked everything. Period. Now, you want to question me, question me, that's fine, but I don't take this ... lightly.” (Bost Decl., Exh. E, 31:18–25.)

While the Court appreciates Mr. Schramm's testimony regarding the generalities of UAS's search for text messages, the Court finds his explanation of the search to be confusing at best. In the absence of any further details regarding the text message search, the Court is unable to conclude that the search was reasonable.

c. The Court Is Unable To Conclude That UAS's Computer And Hard Drive Search Was Reasonable.

UAC points out, and UAS does not dispute, that Mr. Schramm's testimony regarding his search through the hard drive of the computer used for UAS's business was contradictory. (Mot. 5; Opp'n passim.) The Court agrees. Mr. Schramm's testimony that “[t]here was no need to search any hard drive because there was never ever, ever anything saved on a hard drive” (Bost Decl., Exh. E, 35:2–3), is contradicted by his later testimony that he had “looked at [the hard drive], but it was never a major part of the search” (id. at 35:11–13). Mr. Schramm's testimony of his search efforts—“I looked everywhere ... and I didn't find anything ... but it wasn't part of the major part of the search. I looked everywhere. I would only go to the places where I knew everything was. I did blanket everything, though, just in case, to overlap” (id. at 35:16–25)—provides little clarity regarding what, if anything, he did to search the hard drive. From this, the Court cannot conclude that the search through the hard drive was reasonable.

d. The Court Concludes That UAS's Search For Financial Records Was Inadequate.

UAC contends, and UAS does not dispute, that Mr. Schramm's testimony acknowledges that UAS “earned ... revenues ... that are reflected in bank statements, if not Pay Pal records.” (Mot. 5; Opp'n passim; Bost Decl., Exh. E, 37:1–17, 38:17–39:11.) Nor does UAS dispute UAC's contention that UAS has not produced any documents reflecting revenues earned by UAS. (Mot. 5, Opp'n passim.) This is so despite Mr. Schramm's testimony that he has a bank statement showing the $100 revenues received and returned by UAS. (Bost Decl., Exh. E., 39:2-3.) The Court agrees with UAC and finds UAS's failure to produce a single financial document in light of this testimony questionable. Indeed, perhaps for this very reason Mr. Schramm volunteered to check the PayPal account again. (Id. at 41:13–15, 50:10–12.) Based on this testimony, and the absence of any financial records in UAS's production, the Court concludes that UAS's search for financial records was inadequate.

e. The Court Concludes That A Further Search Is Necessary.

On the basis of the above, the Court finds Mr. Schramm's testimony was confusing and contradictory, at best, and evasive, at worst. Significantly, his testimony left the Court with lingering questions about the nature and extent of his search(es). Because at the outset UAS's counsel was unable to provide any visibility into UAS's search, and because Mr. Schramm's testimony, which was intended to provide clarity, also left the Court with little certainty about the reasonableness of the search(es) conducted by UAS, the Court can only conclude that a further search is necessary.

3. A Forensic Examination Pursuant To The Proposed Search Protocol Is Appropriate Under The Circumstances.

*9 Having found that a further search is necessary, the Court next turns to the question whether that search should be conducted by UAS, as offered by UAS (Opp'n 2–3), or by an independent forensic expert who specializes in electronic discovery, as proposed by UAC (Mot. 6–10).

UAC's Proposed Search Protocol provides for the retention of an agreed-upon independent expert in the field of electronic discovery who would (1) image five UAS email accounts[4], two UAS telephones[5], and any computers used by UAS to conduct the business at issue in the lawsuit[6], (2) run searches on the files contained therein using eighteen specified search terms[7], and (3) deliver the results of the search to UAS's counsel and notify UAC of same. (Proposed Search Protocol passim.) In turn, UAS's counsel would examine the search results for privilege and responsiveness and provide to UAC a supplemental document production of responsive items and a comprehensive privilege log as to withheld documents. (Id.) In addition, the Proposed Search Protocol would require UAS to provide consent to UAC to subpoena GoDaddy to produce all files stored in three UAS email accounts[8] to the expert who would follow the above-described protocol on those files. (Id. at 7–8.)

UAS, in turn, offers to contact Pay Pal and GoDaddy directly and in writing to obtain any emails that may still be recoverable from those sources, search any such emails that may exist using the keywords proposed by UAC, and then provide all responsive documents to UAC. (Opp'n 2–3.) In addition, UAS offers to conduct another search of its cell phones (though the numbers are not identified) and the computer hard drive using the search terms proposed by UAC, and then provide a response under penalty of perjury. (Id. at 3.)

Although Rule 34 permits the inspection of electronically stored information, any such inspection must be circumscribed by Rule 26(b)(2)(C), which requires a balancing whenever any discovery is challenged as an undue burden. Fed. R. Civ. P. 26(b)(2)(B). Although, as set forth above, UAS does not stand on sure footing with respect to the viability of any objections, the Court concludes that, even analyzing its argument that the Proposed Search Protocol constitutes an “unreasonable intrusion ... upon defendants' personal and business life” as a privacy concern, a forensic search still is appropriate.

A court considering whether to compel a forensic analysis of a party's electronic devices “must be mindful of the potential intrusiveness” and “weigh inherent privacy concerns against its utility.” Bennett v. Martin, 186 Ohio App. 3d 412, 425 (2009) (citing John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008)). A determination of whether the circumstances justify forensic imaging requires consideration of “whether the responding party has withheld requested information, whether the responding party is unable or Unwilling to search for the requested information, and the extent to which the responding party has complied with discovery requests.” Id. (citing Henderson v. U.S. Bank, N.A., No. 08C0839, 2009 U.S. Dist. LEXIS 40968, at *4 (E.D. Wis. Apr. 29, 2009). The scales tip in favor of compelling forensic imaging where there exists evidence of either discrepancies in a discovery response or a failure by the responding party to produce requested information. Id.; Diepenhorst v. City of Battle Creek, No. 1:05-cv-734, 2006 U.S. Dist. LEXIS 48551, at *9 (W.D. Mich. June 30, 2006); In re Weekley Homes, L.P., 295 S.W.3d 309, 315 (Tex. 2009).

*10 The evidence here weighs in favor of compelling a forensic examination of UAS's electronic devices using the Proposed Search Protocol. As an initial matter, Mr. Schramm's testimony regarding his search methods was internally inconsistent and at times contradictory. If Mr. Schramm's testimony makes anything clear it is that, at best, he lacks the sophistication to conduct a reasonable search without assistance. Left to his own devices, as it appears his counsel did, Mr. Schramm conducted a superficial search and, indeed, might have caused evidence to be destroyed through his instructions to GoDaddy cancel the websites: “From the threats of [UAC's counsel's] emails to me and then the [PI Order] that [UAC's counsel] did, especially right after the order, I immediately canceled the websites and the emails were attached to the websites,” (Bost Decl., Exh. E, 19:16–19.)[9] Still, Mr. Schramm's opinion that the information once held by GoDaddy has been destroyed (id.) cannot be relied upon given that he is not a forensic expert. Moreover, because UAS is an online business, there is no other means by which UAC may obtain these documents, to the extent they exist.

That said, the Court does not agree that UAS can, or should be, ordered to consent to the subpoena to GoDaddy as set forth in the Proposed Search Protocol. (Proposed Search Protocol 7–8.) Rule 45 of the Federal Rules of Civil Procedure (“Rule 45”) provides the mechanism by which a party may obtain discovery from a non-party, such as GoDaddy. It permits a party to command the deposition of, or the production of documents (including electronically stored information) by, non-parties. Fed. R. Civ. P. 45(a)(1)(A)(iii). It also allows “a person subject to or affected by the subpoena,” such as UAS here and maybe others unknown to the parties or the Court, to move to quash or modify such a subpoena where compliance with the subpoena would (i) disclose a trade secret or other confidential research, development, or commercial information; or (ii) disclose an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party. Fed. R. Civ. P. 45(d)(3)(B). Notwithstanding, in analyzing a motion to quash or modify pursuant to Rule 45(d)(3)(B), a court still may “order appearance or production if the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship, and (ii) ensures that the subpoenaed person will be reasonably compensated.” Fed. R. Civ. P. 45(d)(3)(C).

UAC's request that the Court order UAS to affirmatively consent to the proposed GoDaddy subpoena is tantamount to a request that the Court pre-judge the objections that could be raised by UAS or any other person who might be subject to or affected by the subpoena. While UAS advances no argument against the proposed GoDaddy subpoena, neither does UAC present any legal authority that would permit such an order. On this basis, the Court declines to make such an order.

In the end, the Court finds that, with the exception of the provisions regarding the subpoena to GoDaddy, the Proposed Search Protocol strikes the proper balance between protecting the privacy of UAS and the need for UAC to obtain any responsive information or documents contained in UAS's electronic devices.

4. The Costs Of The Forensic Investigation Shall Be Shared Equally By The Parties, Subject To A Further Review Of This Allocation Upon Evidence Of Discovery Misconduct.

UAC requests that the Court order UAS to bear the entirety or a majority of the costs associated with the forensic expert. (Mot. 10.) In support of this request, UAC relies on the presumption that “the responding party must bear the expense of complying with discovery requests,” (Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978)), and argues that, because the implementation of the search protocol is necessitated solely by UAS's discovery misconduct, the Court should not shift costs to UAC. (Id.) UAS simply argues in a conclusory manner that the costs of a forensic examination, if ordered, should be borne by UAC. (Opp'n 6.)

*11 The Court is mindful that the forensic investigation it orders likely will be costly. Still, the evidence is clear that, but for the inability of UAS and its counsel to explain UAS's initial Search, the forensic investigation would not be necessary. Accordingly, the Court concludes that the parties should—at least initially—share equally in the cost of the forensic investigation. However, if through the forensic investigation or other means evidence of discovery misconduct by UAS should surface, the Court will revisit this allocation and consider a shifting of more or all of the fees and costs associated with the independent expert to UAS.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART UAC's Motion. Specifically, the Court adopts the Proposed Search Protocol with the revisions set forth below (the “Search Protocol,” attached to this Order as Exhibit 1) and Orders as follows:

IT IS SO ORDERED.