*1 Pending before the Court is Defendants' Motion to Compel Forensic Analysis of Plaintiff Lloyd Baker's E-Mail Account. ECF No. 14. Mr. Baker has filed a response in opposition, ECF No. 17, and the motion, therefore, is ripe for consideration. For the reasons explained below, Defendants' motion to compel is due to be DENIED.

I. BACKGROUND

Mr. Baker is a Bellwether Plaintiff in Trial Group A of this multidistrict litigation, which initiated in this Court on April 3, 2019. Case No. 3:19-md-2885, ECF No. 1 (N.D. Fla. Apr. 3, 2019). Meanwhile, Mr. Baker began preparing his case against Defendants two months earlier (in February 2019), when he requested his military records from the U.S. Department of Veterans Affairs for “legal” reasons, ECF No. 14-1, and emailed Johnson Law Group (a law firm) regarding his use of the Combat Arms Earplugs Version 2 (“CAEv2”), ECF No. 14-2 at 2.

On July 17, 2019, the Court entered Pretrial Order No. 8. Case No. 3:19-md-2885, ECF No. 440 (N.D. Fla. July 17, 2019). The purpose of the order was “to facilitate the preservation of ESI and hard copy documents in an efficient manner and in accordance with the Federal Rules [of Civil Procedure].” Id. at 2. Accordingly, the Court imposed preservation obligations on the parties, including directing “[c]ounsel for individual Plaintiffs [to] advise Plaintiffs of their current and continuing obligations to preserve and not alter or destroy any potentially relevant materials.” Id. at 5.

Mr. Baker began uploading documents (medical records) to MDL Centrality on October 7, 2019, ECF No. 14-3, and filed his short-form complaint on January 17, 2020, ECF No. 1. One month later, Mr. Baker was selected as a Bellwether Plaintiff. Case No. 3:19-md-2885, ECF No. 1015 (N.D. Fla. Feb. 27, 2020).

On July 28, 2020, the Court entered Pretrial Order No. 42 governing the “Bellwether Plaintiffs' identification, collection, and production of relevant and responsive electronically stored information (‘ESI’).” Case No. 3:19-md-2885, ECF No. 1286 (N.D. Fla. July 28, 2020). Mr. Baker was directed to conduct a “reasonable investigation” of, among other ESI sources, “any email accounts used by [him]—whether stored locally or in a cloud-based system (e.g., Gmail, Yahoo, and Hotmail).” Id. at 2. This investigation including running specific such terms, such as “hear,” “hearing,” “ear,” and “ears.” Id. at 4. Pretrial Order No. 42 also set forth the processes for linear review, production of ESI, and certification of compliance. Id. at 4–6. Mr. Baker's deadline for production and certification under Pretrial Order No. 42 was July 8, 2020. Id. at 6.

Mr. Baker and his counsel, with the help of counsel's ESI vendor International Litigations Solutions, Inc. (“ILS”), proceeded with their reasonable investigation to locate relevant and responsive ESI. ECF No.17-1 (Declaration of Michael Ciaramitaro, ILS Director of Digital Forensics). On June 26, 2020, Mr. Ciaramitaro performed a “web mail collection” of Mr. Baker's Yahoo email account (taoalive@yahoo.com), which Mr. Baker has maintained for 20 years, using an industry standard software (Forensic Email Collector). Id. at 3; see also ECF No 17 at 3. Mr. Ciaramitaro collected the contents of Mr. Baker's email account “in full, including any and all Inbox, Sent, Trash, and other folders available from the Yahoo service provider at the time of the collection.” ECF No. 17-1 at 4. This process concluded on June 30, 2020, and on July 8, 2020, Mr. Baker produced to Defendants a collection of ESI documents from his Yahoo email and Facebook accounts. ECF No. 17 at 4. The collection did not include any emails from the Sent folder of Mr. Baker's Yahoo email account older than November 6, 2018, at 3:06 p.m. (Pacific Time) but contained emails received by Mr. Baker (presumably in his Inbox folder) spanning back to at least 2009. Id. at 5; see also ECF No. 17-1 at 4–5. Mr. Baker certified compliance with Pretrial Order No 42 on July 8, 2020. ECF No. 14-7.

*2 When Defendants received third-party discovery from Mr. Baker's Employer, Triple Canopy, Inc., on July 20, 2020, they uncovered an email from Mr. Baker's Yahoo email account, dated February 6, 2012. ECF No. 14-11. The email is the last communication in a thread between him and Michaela Reynolds, Operations Coordinator for Triple Canopy. Id. at 2–3. Mr. Baker stated: “My hearing loss is minor and only in my left ear. It will in no way affect my ability to perform my duties. I will rescan those documents and send them to you asap.” Id. at 2.

Defendants' counsel questioned Mr. Baker about the February 6, 2012, email at his deposition on July 21, 2020. ECF No. 14-12 at 59. Mr. Baker testified that he did not have an explanation as to why the email was not produced but did not recall deleting the email. Id. When Defendants raised the issue with Mr. Baker's counsel, ECF No. 14 at 5–6, Mr. Baker's counsel returned to Mr. Ciaramitaro on July 24, 2020, ECF No. 17-1 at 4. Mr. Ciaramitaro confirmed that the collected data of Mr. Baker's Yahoo email account did not include the February 6, 2012, email. Id. Mr. Ciaramitaro deduced that the emails sent from Mr. Baker's Yahoo email address prior to November 6, 2018, were deleted on or before November 6, 2018, and there was no evidence “to indicate that further Sent email deletions have occurred thereafter.” Id. at 4–5.

On August 10, 2020, Defendants' counsel sent Mr. Baker's counsel a letter with questions concerning the breadth and diligence of Mr. Baker's ESI preservation and production. ECF No. 14-16. And Defendants' counsel asked whether Mr. Baker would consent to a limited forensic examination of Mr. Baker's Yahoo email account. Id. Mr. Baker's counsel sent a letter in response on August 17, 2020, stating Mr. Baker's position that he had fully complied with all aspects of Pretrial Order No. 42 and objecting to providing further information. ECF No. 14-17.

Defendants now request that the Court appoint a neutral expert to conduct a forensic examination of Mr. Baker's Yahoo email account that would assess when the February 6, 2012, email was deleted and whether “additional, potentially relevant” emails were deleted and not produced. ECF No. 14 at 2. Defendants say the undisputed facts concerning production of the February 6, 2012, email by Mr. Baker's employer, not by Mr. Baker himself in accordance with Pretrial Order No. 42, “raise serious questions as to the reliability and completeness of Mr. Baker's document production.” Id. at 9. Mr. Baker opposes Defendants' motion, arguing that he has complied with Pretrial Order No. 42 and that the Court should not appoint a neutral expert for forensic examination based on Defendants' “mere skepticism” of the completeness of Mr. Baker's production. ECF No. 17 at 11–17.

II. LEGAL STANDARD

The Federal Rules of Civil Procedure provide some guidance on this issue. Rule 34(a)(1) permits the inspection, testing, or sampling of a party's ESI. Fed. R. Civ. P. 34(a)(1)(A). When Rule 34(a)(1) was amended to include ESI as a discovery source, however, the Advisory Committee warned that inspection or testing of this material “may raise issues of confidentiality or privacy” and its addition was “not meant to create a routine right of direct access to party's electronic information system[.]” Fed. R. Civ. P. 34 advisory committee's note. The Advisory Committee suggested that “[c]ourts should guard against undue intrusiveness resulting from inspecting or testing such systems.” Id. Accordingly, the Court has limited authority to compel a forensic examination of a party's ESI in the absence of consent.[1]

*3 The parties devote a significant portion of their briefings to discussing the varying legal standards federal courts have applied to determine whether a compelled forensic examination is appropriate. Defendants argue a forensic examination is warranted to determine if relevant evidence was lost or destroyed, based upon discrepancies or inconsistencies in a party's discovery responses, or where a responding party is unwilling to produce relevant discovery.[2] Mr. Baker, on the other hand, argues there must be a strong showing by Defendants that he either intentionally destroyed evidence or intentionally thwarted discovery.[3] Upon considering the authority cited by the parties, in the court's view the standard set forth in Procaps, 2014 WL 11498061, at *3, is the most instructive standard applicable to a situation like this where a relevant email has not been produced. That is, the Court will compel a forensic examination of a party's ESI only where there is a strong showing that the party intentionally destroyed evidence or intentionally thwarted discovery. This standard protects against the same discovery uncertainties or abuses suggested by Defendants as warranting forensic examination under a “lesser” standard. For example, Judge Goodman in Procaps explains that “a party intentionally thwarts discovery by violating court orders to produce, purposefully hid[ing] responsive documents[,] and fail[ing] to initiate a reasonable process to search for, collect and produce responsive ESI.” Id. at *4. It is also most in line with the Eleventh Circuit's holding in In re Ford Motor Co. that a district court may not allow a requesting party direct access to the responding party's electronic databases without “a factual finding of some non-compliance with discovery rules.” 345 F.3d at 1317.

Finally, the overwhelming weight of authority supports the view that the Court should protect against undue intrusion on the responding party's privacy in these case and that the requesting party's mere desire to “double check” the completeness of a responding party's production will not suffice.[4]

III. DISCUSSION

Turning to the case at hand, the Court concludes Defendants have failed to demonstrate that a limited neutral forensic examination of Mr. Baker's Yahoo email account is warranted. For starters, there is no evidence that Mr. Baker intentionally destroyed the February 6, 2012, email to his employer when he had a known duty to preserve it or to produce it in discovery. Defendants concede this lack of evidence in their motion, but they place the blame on Mr. Baker because he and his counsel did not disclose their means of investigation and collection during the meet and confer process. ECF No. 14 at 7 n.2.

Mr. Baker has now done so, ECF No. 17-1, and it is evident from Mr. Ciaramitaro's declaration that Mr. Baker did not have any emails from his Sent folder that originated before November 6, 2018, at 3:06 p.m. (Pacific Time), ECF No. 17-1 at 4. Mr. Ciaramitaro avers, after his review, that the older emails were deleted around November 6, 2018. Id. The Court agrees because any contrary inference of malicious intent—that Mr. Baker cleared his entire Sent folder to avoid disclosure in this case—is hardly reasonable. The record shows that Mr. Baker did not begin pursuing his case against Defendants until months later, in February 2019. Moreover, Mr. Baker did not delete older emails in his Inbox from that same time period, including emails within the same February 2012 chain with Ms. Reynolds. ECF No. 14 at 8. Indeed, Mr. Ciaramitaro retrieved 13 emails between Mr. Baker and Ms. Reynolds dated between March 4, 2009, and July 17, 2019. ECF No. 17-4 at 5. The only reasonable conclusion is that the February 6, 2012, email was deleted as a matter of course or en masse before Mr. Baker had any duty to preserve or produce it.

*4 Defendants have also failed to show that Mr. Baker intentionally thwarted discovery. He has not violated court orders, purposefully hid responsive discovery, or failed to initiate a reasonable investigation for ESI. To that last point, this is not a case where a neutral forensic examination would be prudent because Mr. Baker or his counsel attempted to retrieve ESI for production without assistance.[5] Mr. Baker turned this task over to an expert, Mr. Ciaramitaro, who undertook a thorough collection and review process in accordance with Pretrial Order No. 42. Any forensic examination by a neutral expert would be redundant. There are also no “discrepancies or inconsistencies” in Mr. Baker's discovery responses to justify Defendants' motion.[6] Defendants obtained the February 6, 2012, email through third-party discovery (not a separate or late production by Mr. Baker), and Mr. Baker has not produced other sent emails from that time period because, according to Mr. Ciaramitaro, he does not have them.

What's more, Defendants' request for a neutral expert to conduct a forensic examination that would determine whether “additional, potentially relevant” emails were deleted and not produced, ECF No. 14 at 2, is based on conjecture and essentially “doubles down” on Defendants' suggestion of malice on Mr. Baker's part. As explained above, there is no basis for the Court to order a forensic examination of Mr. Baker's ESI sources, even by a neutral party rather than Defendants themselves, when the sole purpose of that examination is based on mere skepticism, suspicion, or speculation concerning the completeness of a party's discovery production.

Lastly, the Court is not persuaded by Defendants' assertion that the decision in Zimmer, Inc. v. Stryker Corp., No. 3:14-cv-152-JD-CAN, 2015 WL 13700949, at *1 (N.D. Ind. May 11, 2015), is “instructive” in this case. ECF No. 14 at 9. In Zimmer, Plaintiff Zimmer, Inc., asked Defendant Stovall in February 2014 to produce his “text messages and communications going back to August 1, 2013, related to his recruitment and transition to Stryker.” 2015 WL 13700949, at *1. Stovall produced 800 text messages between himself and a Zimmer manager from 2014, 55 text messages with five Stryker employees, and 15 text messages with two doctors. Id. Through depositions of Stryker representatives, Zimmer learned Stovall communicated with Stryker before the dates of the messages Stovall produced and that Stovall and Stryker representatives deleted text messages “on a daily basis.” Id. When Zimmer moved for a neutral forensic examination of Stovall's electronic devices, the Court made two critical findings: (1) that Zimmer showed misconduct “raising serious questions as to the reliability and completeness of his previous production” by citing to deposition testimony demonstrating Stovall “was likely aware of the deleted communications in the relevant time period”; and (2) that Stovall “did not mention the deleted communications” in discovery responses. Id. at *3.

*5 Zimmer is inapposite. The February 6, 2012, email originated more than eight years ago and, according to Mr. Ciaramitaro, it was likely deleted 20 months prior to Mr. Baker's production in July 2020. This is not as narrow of a time frame as that in Zimmer. Additionally, Defendants offer no evidence that Mr. Baker was aware of the 2012 email in issue when he made his production to Defendants in 2020. Unlike the Court's finding in Zimmer as to Stovall, the only deposition testimony concerning this email is Mr. Baker's, and he stated that he did not have an explanation as to why the email was not produced but did not recall deleting the email. ECF No. 14-12 at 59. The Court, therefore, cannot conclude this testimony raises the same serious questions as to reliability and completeness that were present in Zimmer.

In sum, the Court will not compel a neutral forensic examination of Mr. Baker's Yahoo email account, even for the limited purpose of investigating the deletion of the February 6, 2012, email. Defendants have failed to meet their burden of showing that Mr. Baker either intentionally destroyed evidence or intentionally thwarted discovery. Mr. Baker conducted a reasonable investigation for relevant and responsive ESI, as required by Pretrial Order No. 42.

IV. CONCLUSION

Accordingly, it is ORDERED that Defendants' Motion to Compel Forensic Analysis of Plaintiff Baker's E-Mail Account, ECF No. 14, is DENIED.

DONE AND ORDERED this 17th day of September 2020.