I. BACKGROUND[2]

On February 9, 2016, Applicants petitioned this Court under 28 U.S.C. § 1782 (“Section 1782”) for an order compelling Litai Assets, LLC (“Litai”), a company existing and organized under the laws of the State of Florida, to produce discovery for use in reasonably contemplated criminal foreign proceedings against Jean-Michael Paul (“Paul”), a director of Acheron Portfolio Corporation Luxembourg S.A. (“APC”). See ECF No. [1].

On February 10, 2016, the Court entered an order granting the Section 1782 Application, (“Section 1782 Order”), authorizing Applicants to issue and serve subpoenas upon Litai for business records, deposition testimony, electronically stored information, any other electronic communications relating to any communication between Litai, Jan-Eric Samuel (in his capacity as Chairman and CEO of Litai or in relation to Litai) and Paul, and any communications between Litai, Acheron Capital Limited (“ACL”), and/or APC. See ECF No. [7].

On March 24, 2016, Litai moved to quash the subpoenas under Rule 45 of the Federal Rules of Civil Procedure and Local Rule 26.1, arguing that Applicants did not satisfy the elements of Section 1782. See ECF No. [10]. In their response filed April 18, 2016, Applicants moved to compel production in accordance with the Section 1782 Order. See ECF No. [16]. On July 27, 2016, after Litai and Applicants timely filed their corresponding replies, the Court denied Litai's motion to quash and granted Applicants’ motion to compel. See ECF No. [30].

Litai appealed, ECF No. [31], and sought to stay discovery pending the appeal, ECF No. [32]. This Court, as well as the Eleventh Circuit Court of Appeals, denied Litai's motion to stay pending appeal. See ECF No. [36]; see also Furstenberg Finance SAS v. Litai Assets LLC, No. 16–15664–DD (11th Cir. Feb. 8, 2017). On December 15, 2017, the Eleventh Circuit affirmed the Court's denial of Litai's motion to quash. See Application of Furstenberg Finance SAS v. Litai Assets LLC, 877 F.3d 1031 (11th Cir. 2017).

On July 14, 2017, Applicants filed a second motion to compel production in accordance with the Section 1782 Order. See ECF No. [43]. Litai responded to the second motion to compel and, on September 21, 2017, Samuel filed a motion for a protective order. See ECF No. [64]. On October 30, 2017, the Court granted Applicants’ second motion to compel and denied Samuel's motion for a protective order.[3] See ECF No. [73]. Pursuant to that order, Litai was ordered to produce Samuel for deposition as an officer of Litai. See Id. at 21.

*2 On December 12, 2017, Litai and Samuel filed a motion to amend the Section 1782 Order to provide for reciprocal recovery, see ECF No. [80], which the Court denied on January 10, 2018, see ECF No. [89]. On December 21, 2017, Applicants filed a third motion to compel and for contempt. See ECF No. [82]. The Court granted the motion, awarding Applicants a compensatory sanction in the form of attorneys’ fees and costs and coercive sanctions for Litai's noncompliance. See ECF No. [99]. On June 8, 2018, Applicants filed the present motion. See ECF No. [124]. The parties have submitted briefs and various notices in support of their positions. See, e.g., ECF Nos. [138], [147], [152], [153]. The Motion is ripe for consideration.

II. DISCUSSION

In the Motion, Applicants contend that Litai has still failed to comply with the Court's October 2017 and January 2018 orders granting Applicants’ second and third motions to compel, respectively. To remedy this continued failure, Applicants “request access to Litai's computers, servers, and hard drives via a court-appointed third party to create a mirror image and conduct a forensic inspection.”[4] ECF No. [124], at 12–13. Specifically, Applicants move the Court to enter the following order:

1) Within five (5) days from the date of the Court's Order, the parties shall meet and confer regarding their designation of an independent computer expert. If the parties cannot agree, each party shall submit its recommendation to the Court, and the Court will select the expert;

2) The appointed expert shall serve as an Officer of the Court. Thus, to the extent that this computer expert has direct or indirect access to information protected by attorney-client privilege, such disclosure will not result in any waiver of Litai's privilege;

3) The independent expert shall sign a confidentiality order. Additionally, the expert shall be allowed to hire other outside support if necessary in order to mirror image Litai's computer system. Any outside support shall be required to sign the same confidentiality order;

4) The expert shall mirror image Litai's computer system (the extent possible, in a manner that minimizes the disruption to the operation of Litai's business);

5) Applicants shall provide a list of search terms to the Court to identify responsive documents to its document requests. After Applicants have submitted the search terms to the Court, Litai shall have five (5) days to submit its objections to the Court regarding any of the search terms, which the Court will rule upon. The Court will provide the search terms to the independent expert;

6) Once the expert has mirror imaged Litai's computer system, the expert shall search the mirror image results using the search terms. The results of the search terms and an electronic copy of all responsive documents shall be provided to the Litai and to the Court;

7) Litai shall have ten (10) days from receipt of the results to file a motion for protective order regarding objectionable matter disclosed in the results;

8) Litai shall pay for all fees and costs of hiring the independent expert due to their continuing bad faith conduct necessitated this independent review; and

9) Within 5 days of providing Litai and the Court with the results of the search for search terms in the mirror image, the independent expert shall provide a signed affidavit detailing the steps he or she took in mirror imaging Litai's computer system and searching the mirror image for the search terms.

*3 See Id. at 14–15. The Court does not find that such an “unusual and ‘drastic’ remedy” is warranted. See Procaps S.A. v. Patheon Inc., No. 12-24356-CIV, 2014 WL 11498061, at *3 (S.D. Fla. Dec. 30, 2014) (citing In re Ford Motor Co., 345 F.3d 1315 (11th Cir. 2003) and noting that a forensic examination is the “exception not the rule”). “Generally speaking, courts do not require a forensic analysis in the absence of consent unless there has been significant non-compliance with discovery obligations.” Id. (citing Powers v. Thomas M. Cooley Law School, No. 5:05–CV–117, 2006 WL 2711512, at *5 (W.D. Mich. Sept. 21, 2006)); see also Mirbeau of Geneva Lake LLC v. City of Lake Geneva, No. 08–CV–693, 2009 WL 3347101, at *1 (E.D. Wis. Oct. 15, 2009) (forensic analysis appropriate “[o]nly if the moving party can actually prove that the responding party has concealed information or lacks the expertise necessary to search and retrieve all relevant data”); Daimler Truck N. Am. LLC v. Younessi, No. 08–MC–5011RBL, 2008 WL 2519845, at *3 (W.D. Wash. June 20, 2008) (denying forensic analysis where there was no evidence that documents were destroyed and where the court predicted the responding party would produce the discovery); U & I Corp. v. Advanced Med. Design, Inc., 251 F.R.D. 667, 675–76 (M.D. Fla. 2008) (defendant satisfied In re Ford’s non-compliance with discovery standard because plaintiff had committed several serious discovery violations).

“Framed by these principles, courts compel a party to turn over its computers for a forensic [electronically stored information] analysis only where there is a strong showing that the party (1) intentionally destroyed evidence, or (2) intentionally thwarted discovery.” Procaps S.A., 2014 WL 11498061, at *3 (citing Powers, 2006 WL 2711512, at *5). “The rule is similar in state courts in Florida.” Id. (citing Holland v. Barfield, 35 So. 3d 953 (Fla. 5th DCA 2010) (granting writ of certiorari and quashing order requiring defendant to produce her computer hard drive)).

The Court does not find that these standards have been met. For the first prong, “a party is found to have intentionally destroyed evidence when it purposefully destroys evidence it has a duty to produce.” Id. (citing Koosharem Corp. v. Spec Pers, LLC, No. 6:08–583–HFF, 2008 WL 4458864, at *1 (D.S.C. Sept. 29, 2008) (forensic evaluation ordered after every email defendant produced was inauthentic and court noted that defendant revised and forged email content)); see also Playboy Enters. v. Welles, 60 F. Supp. 2d 1050, 1051 (S.D. Cal. 1999) (authorizing forensic ESI evaluation after methodical deletion of relevant emails once litigation began). While Applicants contend that Litai has failed to comply, at no point do they prove or even allege that Litai has intentionally destroyed any relevant evidence.

As to the second prong, “a party intentionally thwarts discovery by violating court orders to produce, purposefully hides responsive documents and fails to initiate a reasonable process to search for, collect and produce responsive [electronically stored information].” Id. (citing U and I Corp., 251 F.R.D. at 675–76. “Conversely, a party does not intentionally thwart discovery where it undertakes a reasonable, good faith process to locate and produce documents.” Id. (citing Henderson v. U.S. Bank, N.A., No. 08C0839, 2009 WL 1152019, at *2 (E.D. Wis. Apr. 29, 2009) (concluding that bank's demand for direct access to its former employees’ electronic materials was premature)). Here, the Court has on three occasions ordered Litai to produce relevant discovery. See ECF Nos. [30], [73], [99]. The Court also notes, however, that Applicants can engage and are engaged in other efforts far less intrusive than a forensic analysis. For instance, in the Court's October 30, 2017 Order granting Applicant's second motion to compel, the Court ordered Litai to produce Samuel for deposition. It has not been almost a year since the Court allowed Applicants to proceed with this deposition. Yet for reasons that remain unclear, Applicants have failed to depose Samuel, despite that the fact that he likely has answers to the various questions and concerns raised by Applicants. Applicants, moreover, are now engaged in a parallel Section 1782 proceeding in the Southern District of New York, where they are seemingly succeeding in acquiring more fruitful discovery from third-party banks. See ECF No. [152].

*4 The Court also notes that Applicants’ fourth motion to compel was filed over four months after the Court's January 30, 2018 Order granting their third motion to compel and over two months after Applicants noted in their motion for appellate attorneys’ fees and costs that the discovery remained deficient. See ECF Nos. [99] (order granting third motion to compel, entered on January 30, 2018); [107] (motion for appellate fees and costs, filed on March 19, 2018); [124] (fourth motion to compel, filed on June 8, 2018). Local Rule 26.1(g) of the Southern District of Florida, which deals with discovery motions, provides:

Applicants’ reasons for failing to abide by the timeframe set out in this Court's Local Rules—that they focused their immediate time on the proceedings in the Southern District of New York and that the Court has discretion to waive the requirement—are unavailing. See ECF No. [147], at 9.

Section 1782 is intended to provide “efficient means of assistance to participants in international litigation in our federal courts,” Application of Esses, 101 F.3d 873, 876 (2d Cir. 1996), when those participants seek discovery for use in a foreign proceeding that is “within reasonable contemplation,” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 259 (2004) (emphasis added). It has now been close to three years since the Court granted Applicants’ Section 1782 application, yet the criminal foreign proceedings in Luxembourg have not been commenced, even though Applicants stated that they were ready to begin these proceedings within forty-five days of deposing Samuel. See ECF No. [145–1], at 16–17.

In sum, the Court does not find that the requested relief is warranted. See In re Kivisto, 521 F. App'x 886, 888 (11th Cir. 2013) (“The district court also may consider whether the application contains ‘unduly intrusive or burdensome requests ....”) (quoting Intel Corp., 542 U.S. at 265); Memry Corp. v. Kentucky Oil Tech, N.V., No. C04–03843 RMW, 2007 WL 832937, at *4 (N.D. Cal. March 19, 2007) (denying requested forensic inspection and noting that the requesting party had not demonstrated sufficient flaws in production and noting that less-than-perfect document production does not “necessarily rise to the level of necessitating production of hard drives”).

Accordingly, it is ORDERED AND ADJUDGED that Applicants’ Fourth Motion to Compel Discovery and For Contempt, ECF No. [124], is DENIED. In previous orders, the Court has granted Applicants their right to attorneys’ fees and costs. Applicants may now move for their reasonable attorneys’ fees and costs in accordance with the Court's Local Rule 7.3.

DONE AND ORDERED in Miami, Florida this 19th day of October, 2018.

The motion has been filed under seal.

For a more detailed recitation of the underlying facts supporting Applicants’ Section 1782 Application, see ECF Nos. [7], [73], [89].

Litai and Samuel also appealed the Court's order granting Applicants’ second motion to compel and denying Samuel's motion for a protective order. See ECF No. [74]. Pursuant to Movants’ motion for voluntary dismissal, the Eleventh Circuit dismissed the appeal on January 5, 2018. See ECF No. [88].

“A ‘forensic image’, otherwise known as a ‘mirror image’ will replicate bit for bit sector for sector, all allocated and unallocated space, including slack space, on a computer hard drive. A mirror image contains all the information in the computer, including embedded, residual, and deleted data.” Wynmoor Cmty. Council, Inc. v. QBE Ins. Corp., 280 F.R.D. 681, 686–87 (S.D. Fla. 2012) (internal citations omitted).