*1 This cause came on for consideration without oral argument on the following motions:

I. BACKGROUND.

This case was originally filed in state court and removed to this Court. Doc. No. 2. On December 27, 2018, Plaintiffs Classic Soft Trim, Inc. (“CST”) and Roadwire LLC (“Roadwire”) filed an Amended Complaint against Defendants Ross Albert (“Albert”), Katzkin Leather, Inc. (“Katzkin”), Clearlight Partners LLC (“Clearlight”), and Clearlight Partners Management LLC (“CPM”). Doc. No. 35. The Amended Complaint alleges causes of action for: 1) violation of Florida's Deceptive and Unfair Trade Practices Act; 2) violation of Ohio's Deceptive Trade Practices Act; 3) tortious interference with a contractual relationship and business relationships; 4) inducing breach of loyalty and fiduciary duties; 5) intentional interference with employee/employer relations; 6) injurious falsehood; and 7) attempted monopolization in violation of section 2 of the Sherman Act. Id. Plaintiffs allege that Katzkin's violations involved non-parties Classic Designs Automotive, “LLC” (“CDA”), John Held (“Mr. Held”), and John Donnellan (“Mr. Donnellan”) (also collectively referred to as the “non-parties”). Doc. No. 35 at 11-16. CDA, Mr. Held, and Mr. Donnellan were defendants in the original state action but were dismissed with prejudice prior to removal of this case to federal court. Doc. No. 197 at 2.

On March 1, 2019, CST filed a Motion to Compel CDA, Mr. Held, and Mr. Donnellan, to produce documents and things as requested in subpoenas duces tecum served on each of them (the “Motion to Compel”). Doc. No. 86. There were thirteen document production requests:

Doc. No. 86 at 55-56.

On April 12, 2019, this Court granted the Motion to Compel in part and directed the non-parties to provide responses to requests 1, 2, 9, 10, 11, 12, and 13. Doc. No. 109 at 8. The Court found the other requests were relevant but not proportional. Id. at 5-6. The Court also found that the non-parties’ objections were insufficient and they failed to meet their burden regarding the confidential and privileged nature of the information. Id. at 6-7. On May 2, 2019, CDA filed a Notice of Compliance indicating that it had provided copies of documents responsive to requests 9, 11, and 13. Doc. No. 118. CDA represented that it did not have any documents to produce which were responsive to requests 1, 2, 10 and 12. Id.

On January 23, 2020, Plaintiffs filed a Motion to Compel CDA to produce documents and things as requested in a second subpoena duces tecum served on April 30, 2019 (the “Second Motion to Compel”). Doc. No. 196. The second subpoena sought documents and things related to the requests previously denied by this Court because they were not proportional. Doc. No. 196-1. There were seven requests:

Doc. No. 196-1 at 7-8. Plaintiffs only sought to compel responses to requests 1, 3, 4, 5, 6, and 7. Doc. No. 196. Plaintiffs argued that CDA has improperly refused to comply with the second subpoena based on this Court's previous order (Doc. No. 86) and that CDA alternatively raised the same general objections it raised in response to the first subpoena. Doc. No. 196.

On February 5, 2020, CDA filed a Response to the Second Motion to Compel (“Second Response”). Doc. No. 201. CDA argued, in pertinent part, that the requested items had been ruled on by this Court, and that “Magistrate Judge Kelly denied that the non-parties needed to respond to” the original requests so CDA does not have to respond to the newly narrowed requests. Id. at 3-4; 5-6. CDA then generally objected based on confidentiality, the proprietary and sensitive nature of the information sought, the fact that the parties are competitors, and that the request are unduly burdensome. Id. at 4; 10-14.

On January 23, 2020, CST filed a Motion to Compel Forensic Examination of Non-Parties’ Electronic Devices and to Produce Documents Requested Per Subpoena Duces Tecum (the “Third Motion to Compel”). Doc. No. 197. The Third Motion to Compel related to a third subpoena duces tecum, served on CDA on September 27, 2019, that sought production of documents and electronically stored information (“ESI”), and requested the forensic examination of cell phones, laptops, tablets and desktop devices used by CDA, Mr. Held, and Mr. Donnellan, including Mr. Held and Mr. Donnellan's personal devices. Doc. No. 197; 197-2. The third subpoena duces tecum had the following requests:

Doc. No. 197-2 at 12-14. CDA served untimely objections claiming the requests were duplicative and raised general objections. Doc. No. 197-3. CDA “adopt[ed] and object[ed] to the discovery requests ... in CST's third subpoena on [the] same grounds that it objected to the very similar if not the same discovery requests in CST's first and second subpoenas.” Id. at 6.

In the Third Motion to Compel, CST requested that “this Court enter an order instructing former Defendants to produce the electronic devices that John Held and John Donnellan used from July 1, 2015 through the present that they used to engage in communications with Defendants and Plaintiffs’ employees, including their personal cellular phones, laptop computers, tablets, desktop computer and [CDA's] computers and servers that contain any electronic data.” Id. at 1. CST also sought responses to the request for documents in the subpoena, arguing that CDA waived its objection by failing to timely respond to the subpoena. Id. at 2. CST explained the third subpoena specifically requesting ESI was necessary because CDA disagreed that such discovery had been ordered by the Court previously. Id. at 3. CST argued that the information sought was relevant because it all relates to Defendants’ plans to take over the Orlando market in concert with CDA by using CST's own employees to divert CST's customers to CDA. Id. at 6. This includes meetings between CST employees and Ross Albert, CDA, Mr. Held and Mr. Donnellan. Id. Daniel Valencia, Nashalia Soto, Naiomy Soto, and Christina Baron were all CST employees during this time period. Id. at 7. CST argued that a forensic examination was required because CDA has said it has no responsive documents, but failed to supplement its responses to the subpoenas, CDA has been intentionally dragging its feet in responding to discovery, and CDA continued to provide nothing but boilerplate objections to CST's discovery requests. Id. at 8. CST also argued that Plaintiffs were aware from third parties that Mr. Held and Mr. Donnellan held at least four in-person meetings at their facility with Katzkin executives and CST employees, and that there should be communications between Mr. Held and Mr. Donnellan and those parties during the relevant time period. Id.

*5 On February 5, 2020, CDA, Mr. Held, and Mr. Donnellan filed a Response to the Third Motion to Compel (the “Third Response”). Doc. No. 202. In their Third Response, CDA conceded the objections were untimely because CDA did not believe that it should have to respond to a third subpoena looking for the same information again as it was harassing.[1] Id. Despite choosing to initially disregard the subpoena and taking no other action to prevent its enforcement, CDA then served a response approximately twelve days after the deadline. Id. at 8. In its response, as well as in the Third Response filed with this Court, CDA restated the same general objections it made previously, including that the information requested is confidential, proprietary, or sensitive business information and that a response would be unduly burdensome. Id. at 5, 8.

On March 6, 2020, the Court held a hearing on both the Second Motion to Compel and Third Motion to Compel. Doc. No. 225. The parties engaged in a meet and confer at the courthouse prior to the hearing but were unable to resolve their disputes. Id. The parties advised the Court they would rely on their written submissions for both the Second and Third Motions to Compel. Id.

On March 12, 2020, the Court entered an order which granted in part and denied in part the Second and Third Motions to Compel. Doc. No. 229. With respect to the Second Motion to Compel, the Court found that the newly narrowly-tailored discovery requests were relevant and proportional. Id. at 13. The Court also found that CDA failed to satisfy the first step of the inquiry with respect to the confidential nature of the information and the question of harm or shifting the burden back to Plaintiffs to demonstrate substantial need. Id. The Court also noted that CDA made no effort to identify privileged information even though it claimed privilege. Id.

With respect to the Third Motion to Compel, the Court found that CDA waived any objections to requests 1 through 10 for production of ESI and made no effort to demonstrate that such waiver should be excused. Id. Further, the Court found that CDA failed to make any sort of showing that retrieving the requested ESI was too burdensome. Id. And, if it was too burdensome for CDA to comply, the Court reminded CDA that Plaintiffs offered IT assistance to capture the relevant ESI such that the requests will not be overly burdensome. Id.

With respect to CST's request for forensic examination, the Court found that CST failed to demonstrate the good cause necessary to outweigh the privacy interests of Mr. Held and Mr. Donnellan. Id. at 14. Similarly, CST failed to demonstrate such forensic examination was required of CDA's electronic devices and server at this juncture. Id. Thus, the Court did not require a forensic examination. However, the Court made clear that if additional information became available that would cause CST to believe a forensic examination was justified, CST could file a renewed motion for forensic examination. Id. Finally, the Court admonished the non-parties “to make a reasonable, diligent effort to search and locate any responsive documents stored electronically or otherwise” and advised that “failure to do so may result in an order requiring a forensic examination of all of the subject electronic devices. At this point, the non-parties should recognize that compliance is paramount.” Id.

In an email dated March 13, 2020, CDA's counsel advised CDA to engage an IT specialist to conduct a forensic examination in order to respond to the pending discovery “even though Judge Baker's order did not require or compel such IT assistance.” Doc. No. 261 at 3. The decision was made, in part, because of a “threatening” email from Mr. Mahaffey, Plaintiff's counsel, sent on March 12, 2020, regarding his intention to “grill Mr. Held if Mr. Held's search was not done with IT assistance.”[2] Id. at 2, 4. Richard Connor was hired to perform the forensic examination. Id. Mr. Connor imaged three office computer devices and Mr. Held and Mr. Donnellan's personal cell phones. Id. at 4-5. Among other items, 602 texts were located on Mr. Held's cell phone, zip files were located, and 3,458 “Katzkin e-mails” were identified, nothing was located on Mr. Donellan's cell phone. Id. at 5. On March 23, 2020, the responsive discovery was delivered to Plaintiffs’ counsel. Id. at 6. On March 24, 2020, CDA delivered Mr. Connor's invoice to CST requesting payment based on CST's previous offer to assist in obtaining an independent IT professional to conduct a forensic examination. Id. at 7. On April 1 and 2, 2020, CST deposed Mr. Connor to ascertain what searches had been conducted and the methods used. Doc. No. 268. CDA also sought payment from CST for Mr. Connor's fees related to that deposition. Doc. No. 261.

*6 On April 21, 2020, CDA filed a Motion to Compel CST to pay for the forensic examination and the deposition (“Motion for Payment of Forensic Exam Fees”). Id. CDA argues that despite the fact the Court did not order a forensic examination, CDA felt compelled to conduct one to properly respond to CST's discovery requests based on Plaintiffs’ counsel's email which stated he would be questioning Mr. Held in detail about how he conducted his search. Id. CDA also argues that Mr. Connor should be considered an expert in this matter and CST held responsible for his deposition fees as well. Id.

On May 5, 2020, CST filed a Response to the Motion for Payment of Forensic Exam Fees (“Response”). Doc. No. 268. CST argues that the search conducted was incomplete as it did not include critical search terms, phone numbers, names and other information. Id. at 6. CST noted that the search did not include Peter Kim's phone number, did not include the names of Clearlight executives, just the domain name, and did not include Ross Albert's email theleatherman@gmail.com. Id. at 9-10. CST argues that CDA provides no basis for requiring them to pay for this forensic examination or the deposition of a fact witness. Id.

On May 14, 2020, CST filed a Renewed Motion for Forensic Examination and Request for Sanctions Against Nonparty for Violation of Court Order (“Renewed Motion and Request for Sanctions”). Doc. No. 269. CST sought to compel CDA to provide certain computers, hard drives, cloud-based accounts, and cellular phones for “imaging, copying, and inspection” by an independent expert. Id. at 1. CST argues that a forensic examination is now required because the search performed by CDA failed to include multiple items requested in the discovery that CDA was compelled by this Court to answer, including: 1) dealership information; 2) email stored on Google Drive; 3) Peter Kim's phone number and the names or phone numbers for other ClearLight personnel; 4) a search for Ross Albert's email theleatherman@gmail.com; 5) certain .pst files; 6) text messages prior to March 2016 where the discovery requested information from January 2012 to 2017.[3] Id. CST seeks to examine the Apple laptop Mr. Held had at deposition, five computers, Mr. Held and Mr. Donnellan's cell phones, back up records on Google Drive, and records on CDA's network server. Id. at 2-3. CST wants CDA to pay for the forensic examination and is seeking sanctions for CDA's willful violation of the Court's order. Id.

On May 27, 2020, Katzkin filed a Response to the Renewed Motion and Request for Sanctions on behalf of CDA (“Katzkin's Response”). Doc. No. 275. Katzkin argues that “CDA engaged in reasonable, good faith measures to comply” with the Court's order and that CDA's failure to comply perfectly was not willful. Id. at 2-3. On May 28, 2020, CDA filed a Response to the Renewed Motion and Request for Sanctions (“CDA's Response”). Doc. No. 277. CDA makes four arguments: 1) CST failed to comply with Rule 3.01(g); 2) the Renewed Motion is replete with incendiary comments, unnecessary and vicious attacks, misrepresentations, and it is nothing more than payback for CDA's Motion for Payment of Forensic Exam Fees; 3) Plaintiff's counsel is difficult, unreasonable, and apparently impolite;[4] and 4) CDA “has attempted to remedy any deficiencies identified by Mr. Mahaffey with additional searches and production of supplemental discovery documents (Id. at 19).” Id.

II. APPLICABLE LAW.

*7 A party may subpoena documents, electronically stored information (“ESI”), or tangible things in a non-party's possession pursuant to Federal Rule of Civil Procedure 45. Fed. R. Civ. P. 45(a)(1)(A)(iii). “The scope of discovery under Rule 45 is the same as the scope of discovery under Federal Rule of Civil Procedure 26.” Digital Assur. Certification, LLC v. Pendolino, 6:17-cv-72, 2017 WL 4342316, at *8, 2017 U.S. Dist. LEXIS 160399, at *22 (M.D. Fla. Sept. 29, 2017). “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case ....” Fed. R. Civ. P. 26(b)(1). This includes discovery of documents located in available electronic systems, deleted emails, and computer files. Wynmoor Cmty. Council, Inc. v. QBE Ins. Corp., 280 F.R.D. 681, 685 (S.D. Fla. 2012) (citing Bank of Mongolia v. M & P Global Fin. Servs., 258 F.R.D. 514, 519 (S.D. Fla. 2009)). The party seeking to enforce a subpoena has the burden of demonstrating the information sought is relevant. Fadalla v. Life Auto. Prods, Inc., 258 F.R.D. 501, 504 (M.D. Fla. 2007). “A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1).

When determining whether a forensic examination is warranted, the Court considers both the privacy interests of the parties whose devices are to be examined and, also, whether the parties withheld requested discovery, will not search for requested discovery, and the extent to which the parties complied with past discovery requests. Garrett v. Univ. of S. Fla. Bd. of Trs., No. 8:17-cv-2874, 2018 WL 4383054, at *2, 2018 U.S. Dist. LEXIS 156996, at *3-4 (M.D. Fla. Sept. 14, 2018) (citing Bradfield v. Mid-Continent Cas. Co., No. 5:13-cv-222, 2014 WL 4626864, at *3-5, 2014 U.S. Dist. LEXIS 128677, at *10-14 (M.D. Fla. Sept. 15, 2014)). “Mere speculation that electronic discovery must exist is insufficient to permit forensic examination of a party's personal computer or cellphone.” Id. at *1-2, 2014 U.S. Dist. LEXIS 128677, at *4 (citing Klayman v. City Pages, No. 5:13-cv-143, 2014 WL 5426515, at *5, 2014 U.S. Dist. LEXIS 150253, at *13-14 (M.D. Fla. Oct. 22, 2014)).

III. ANALYSIS.

What we have here is a failure to communicate. We also have an inordinate amount of name-calling, accusations of misrepresentations and willful disobedience, and posturing from both sides, none of which are particularly helpful in resolving this matter. What strikes the Court the most is that this was largely an avoidable dispute. Both sides could have avoided the problems that have occurred by communicating with each other about what search parameters each expected to be sufficient to encompass the data subject to the discovery request. Neither side communicated their expectations in that regard, as such both sides are responsible for how this process has played out.

CDA claims that “threatening” language in an email from Plaintiff's counsel, Mr. Mahaffey, prompted CDA's counsel to suggest to his client that a forensic examination would be the best course of action.[5] Doc. No. 261 at 7. Given counsel's expressed concerns, it is difficult to understand why CDA made no effort to discuss the forensic examination, or any search parameters for that examination, with CST before conducting the search to minimize any disputes.[6] It is even harder to understand why Mr. Held, when he was deposed, professed little to no understanding of how the forensic search had been defined and conducted despite the fact that Mr. Connor stated Mr. Held gave him the relevant information to search. See Doc. Nos. 268-2 at 8, 17; 277-5. Then, having provided no notice to CST that a forensic examination would be undertaken, and having conducted the search with no input from CST, CDA presented a bill to CST and demanded payment, going so far as to threaten to withhold Mr. Held's voluntary appearance at his deposition if no payment was received. Doc. No. 277-1 at 7. CDA now asks this Court to compel CST to pay Mr. Connor's fees. Doc. No. 268. CDA also demands CST pay Mr. Connor's fees for his deposition.

*8 In its order compelling this discovery, the Court found CDA failed to argue or otherwise demonstrate obtaining this discovery was unduly burdensome. Doc. No. 229. The Court also found that CDA waived any objections to the Third Subpoena because it made a conscious choice not to respond to the discovery in a timely manner. Id. The Court did not require CDA to hire an IT specialist to conduct a forensic examination. Id. CDA made no effort to coordinate with CST or request CST's assistance ahead of the forensic examination which suggests that the forensic examination was not unduly burdensome. CDA did not return to this Court and ask for assistance or argue undue burden once it ascertained the expense associated with Mr. Connor's services. Under these circumstances, the Court is hard-pressed to find any reason to require CST to pay for the search conducted by Mr. Connor or the deposition that followed. Having unilaterally set these events in motion, CDA will have to bear those expenses alone.

CST maintains that an independent forensic examination is still required to ensure that all relevant materials have been located because the search performed by Mr. Connor was incomplete, there is evidence that other relevant materials remain undisclosed, and CDA has otherwise resisted complying with discovery requests.[7] CDA acknowledges that the search was incomplete and has undertaken to provide supplemental discovery based on some of CST's identified deficiencies in the search but maintains it has acted in good faith and that nothing will satisfy Mr. Mahaffey who has been unreasonable and difficult in his demands.[8] Doc. Nos. 277 at 19; 277-2 at 2-3; 277-5 at 6-8.

The Court finds that CDA's acknowledged failure to fully comply with the Court's order was not willful, but CDA was by no means a paragon of due diligence. Rather, CDA's failure to fully comply is more in the nature of negligence. While such behavior is problematic, the Court finds that it does not rise to the level of willful disregard of this Court's order compelling discovery.

The Court also finds, however, that CST has demonstrated beyond mere speculation that relevant discovery exists and that an independent forensic examination of CDA's ESI is appropriate at this juncture. See Wynmoor Community Council, Inc., 280 F.R.D. at 686; Health Plan Servs. v. Dixit, No. 8:18-cv-2608, 2019 U.S. Dist. LEXIS 218063, at *6-7 (M.D. Fla. Dec. 19, 2019); Garrett, 2018 WL 4383054, at *2, 2018 U.S. Dist. LEXIS 156996, at *3-4.

“During discovery, the producing party has an obligation to search available systems for the information demanded.” Digital Assur. Certification LLC v. Pendolino, No. 6:17-cv-72, 2019 WL 161981, at *2, 2019 U.S. Dist. LEXIS 4714, at *5 (M.D. Fla. Jan. 10, 2019) (quoting Wynmoor Community Council, Inc., 280 F.R.D. at 685). While Rule 34 authorizes the requesting party to “inspect, copy, test, or sample” the documents, things, and other information that is produced, it is not meant to create a routine right of direct access to a party's electronic information system, although such access might be justified in some circumstances. Fed. R. Civ. P. 34; Advisory Committee Notes 2006 Amendment. “[A]llowing a party direct access to another party's databases may be warranted in certain situations, such as a showing of non-compliance with discovery rules.” Balfour Beatty Rail, Inc. v. Vaccarello, No. 3:06-cv-551, 2007 WL 169628, at *3, 2007 U.S. Dist. LEXIS 3581, at *7-8 (M.D. Fla. Jan. 18, 2007); Digital Assur. Certification LLC, 2019 WL 161981, at *2, 2019 U.S. Dist. LEXIS 4714, at *5.

*9 CST may conduct an independent forensic examination of the three business computers identified in the search performed by Mr. Connor, any other computers used in the usual course of business by CDA, CDA's network server, the Google drive identified in the Renewed Motion, and Mr. Held's and Mr. Donnellan's personal cellular phones. CST may not search the Apple laptop Mr. Held used in his deposition. CST may choose to use Mr. Connor's services and have him perform the searches it deems necessary within the scope of the Third Subpoena instead of obtaining a new independent IT professional to conduct the searches, assuming Mr. Connor is amenable.[9] Because CDA waived any objections to the discovery requests in the Third Subpoena, CST is permitted to define the scope of the forensic examination within the bounds of the Third Subpoena.

The Court finds that it is appropriate in this case to shift the cost of this additional search to CST. Generally, the responding party is presumed to bear its costs of complying with discovery requests. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). The Court has the discretion, however, to shift all or part of the costs of production to the requesting party. Id. (court may “condition[ ] discovery on the requesting party's payments of the costs of discovery”); FDIC v. Brudnicki, 291 F.R.D. 669, 676 (N.D. Fla. 2013) (courts have held that Rule 26(c) permits cost shifting as part of enforcing proportionality limits); see Peskoff v. Faber, 251 F.R.D. 59, 61 (D.D.C. 2008) (court has discretion to shift all or part of costs to requesting party); Fed. R. Civ. P. 26(b)(2)(B) (“The court may specify conditions for the discovery.”).

Brudnicki, 291 F.R.D. at 676-77; see also Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 322-23 (S.D.N.Y. 2003) (enumerating seven factors involved in cost-shifting analysis for inaccessible ESI). Given that CDA has already conducted a forensic examination which resulted in disclosure of a significant amount of relevant materials, but not disclosure of all materials requested, and assessing the relative cost/benefit of performing further forensic examination, the Court finds it appropriate to shift the expense of an additional forensic examination to CST. Therefore, CDA shall not be required to pay for the independent forensic examination.

Additionally, the Court declines to award sanctions against CDA with respect to any of the previous motions to compel. The Court declined to award attorney's fees on those motions when they were decided and will not revisit its rulings. With respect to the Renewed Motion, while the Court may have been inclined to award attorney's fees to CST under normal circumstances, under the circumstances presented here (where CST failed to clearly articulate to CDA its expectations regarding the forensic examination it deemed appropriate), the Court declines to do so.

*10 Accordingly, it is ORDERED that:

DONE in Orlando, Florida on June 15, 2020.