*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, and John Donnellan (also collectively referred to as the “non-parties”). Doc. No. 35 at 11-16. CDA, Held, and Donellan 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, Held, and 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.[1] 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.

*3 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 seek to compel responses to requests 1, 3, 4, 5, 6, and 7. Doc. No. 196. Plaintiffs argue 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 raises 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 argues, in pertinent part, that the requested items have 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 objects 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 also 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 relates 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, John Held, and John Donellan, including Held and Donnellan's personal devices. Doc. No. 197; 197-2. The third subpoena duces tecum had the following requests:

*5 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.” Doc. No. 197-3 at 6.

In the Third Motion to Compel, CST requests 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.” Doc. No. 197 at 1. CST also seeks responses to the request for documents in the subpoena, arguing that CDA has waived its objection by failing to timely respond to the subpoena. Id. at 2. CST explains 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 argues that the information sought is 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, Held and Donnellan. Id. Daniel Valencia, Nashalia Soto, Naiomy Soto, and Christina Baron were all CST employees during this time period. Id. at 7. CST argues that a forensic examination is now required because CDA has said it has no responsive documents, but has failed to supplement its responses to the subpoenas, CDA has been intentionally dragging its feet in responding to discovery, and CDA continues to provide nothing but boilerplate objections to CST's discovery requests. Id. at 8. CST also argues that Plaintiffs are aware from third parties that Held and Donnellan held at least four in-person meetings at their facility with Katzkin executives and CST employees, and that there should be communications between Held and Donnellan and those parties during the relevant time period. Id.

On February 5, 2020, CDA, Held and Donnellan filed a Response to the Third Motion to Compel (the “Third Response”). Doc. No. 202. In their Third Response, CDA concedes 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.[2] 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. Doc. No. 202 at 8. In its response, as well as in the Third Response filed with this Court, CDA restates 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.

*6 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.

II. APPLICABLE LAW.

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).

The party opposing a subpoena has the burden of demonstrating that compliance with the subpoena presents an undue burden or that it requires the disclosure of privileged or protected information. Fadalla, 258 F.R.D. at 504. Written objections may be served by the non-party, but the objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. Fed. R. Civ. P. 45(d)(2)(B). “Typically, failure to serve written objections to a subpoena in the time provided by [Rule 45] waives any objections that party may have.” Cadle v. GEICO Gen. Ins. Co., No. 6:13-cv-1591, 2014 WL 12639859, at *3, 2014 U.S. Dist. LEXIS 197378, at *7 (M.D. Fla. Aug. 29, 2014); see Gulati v. Ormond Beach Hosp., LLC, No. 6:18-cv-920, 2018 WL 7372080, at *2, 2018 U.S. Dist. LEXIS 211593, at *4 (M.D. Dec. 17, 2018) (“When a party fails to respond to discovery, or provides untimely responses, whatever objections it might otherwise have had are generally deemed waived.”) However, a court can excuse a party from its untimely responses for good cause. Id. (citing Wynmoor Cmty. Council, 280 F.R.D. at 685).

There is no “absolute privilege” for trade secrets and similar confidential business information, rather the court weighs “the claim to privacy against the need for disclosure, and commonly enter[s] a protective order restricting disclosure.” United States ex rel. Willis v. SouthernCare, Inc., No. CV410-124, 2015 WL 5604367, at *3, 2015 U.S. Dist. LEXIS 127746 at *10 (S.D. Ga. Sept. 23, 2015) (quoting Festus & Helen Stacy Found., Inc. v. Merrill Lynch, Pierce Fenner, & Smith Inc., 432 F. Supp. 2d 1375, 1380 (N.D. Ga. 2006)); Fed. R. Civ. P. 45(d)(3)(B)(ii) (“To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires ... disclosing ... commercial information.”). Pursuant to Federal Rule of Civil Procedure 45(e)(2)(A), if a party claims privilege the party must “describe the nature of the withheld documents, communications, or tangible thing in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.”

*7 “The party resisting discovery must first establish that the information sought is [otherwise confidential] and then demonstrate its disclosure might be harmful.” Sams v. GA West Gate, LLC, 316 F.R.D. 693, 698 (N.D. Ga. 2016); Fadalla, 258 F.R.D. at 504. The burden then shifts to the requesting party to demonstrate a “substantial need” which cannot otherwise be met without undue hardship and assures that the non-party is reasonably compensated. Sams, 316 F.R.D. at 698 (citing Gonzales v. Google, Inc., 234 F.R.D. 674, 684 (N.D. Cal. 2006)). Instead of quashing or modifying a subpoena under these circumstances, a court may also impose specified conditions for disclosure. Fed. R. Civ. P. 45(d)(3)(C).

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 *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.

Upon review of the Second Motion to Compel and Second Response, the Court finds that the newly narrowly-tailored discovery requests are relevant and proportional. The Court also finds, as it did previously, that CDA fails 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. Doc. No. 109. Also, as previously noted, CDA has made no effort to identify privileged information even though it claims privilege. Id.; Fed. R. Civ. P. 45(e)(2)(A) (if claiming privilege a party must “describe the nature of the withheld documents, communications, or tangible thing in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.”).

Upon review of the Third Motion to Compel and Third Response, the Court finds 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. CDA admittedly chose not to respond because it felt it should not have to respond, then responded in an untimely fashion with the same objections it had raised two other times, despite the fact that the Court had found such objections insufficient previously with respect to similar discovery. Further, CDA fails to make any sort of showing that retrieving the requested ESI is too burdensome. As the Court observed in its previous order, if it is too burdensome for CDA to comply, Plaintiffs have offered IT assistance to capture the relevant ESI such that the requests will not be overly burdensome. Doc. No. 109 at 7 (citing Doc. No. 86).

With respect to Plaintiffs’ request for forensic examination, the Court finds that Plaintiffs have failed to demonstrate the good cause necessary to outweigh the privacy interests of the non-parties Held and Donnellan. Neither individual is included in the Second and Third Subpoenas, and Plaintiffs have failed to satisfy their burden that accessing Held and Donnellan's personal cellular phones, tablets, laptops and desktops is necessary. See Garrett, 2018 WL 4383054, at *4, *4-5, 2018 U.S. Dist. LEXIS 156996, at *9, *11-14. Similarly, Plaintiffs fail to demonstrate such forensic examination is required of CDA's electronic devices and server at this juncture. Thus, the Court will not require a forensic examination at this time. However, if additional information becomes available that would cause Plaintiffs to believe a forensic examination is justified, Plaintiffs may file a renewed motion for forensic examination.

*8 At the same time, the non-parties are admonished to make a reasonable, diligent effort to search and locate any responsive documents stored electronically or otherwise and are 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. See HealthPlan Servs. v. Dixit, No. 8:18-cv-2608, 2019 WL 6910139, at *2, 2019 U.S. Dist. LEXIS 218063, at *6-7 (M.D. Fla. Dec. 19, 2019) (where defendant did not correctly comply with prior discovery requests in producing ESI, the court determine a forensic examination was warranted).

Accordingly, it is ORDERED that:

DONE and ORDERED in Orlando, Florida on March 11, 2020.