*1 THIS CAUSE is before the Court on Plaintiffs’ Motion to Compel Immediate Forensic Examination of Phone in Bluman's “Family Caretaker's” Possession Following Defendants’ Destruction of Evidence [DE 44]. Defendants filed a response in opposition [DE 52], and Plaintiffs filed a reply [DE 53]. In addition, as required by a prior Court Order [DE 57], Defendants submitted a sworn statement by Defendant Daniel Bluman with supplemental information about the cellular phones he used during the relevant timeframe [DE 58]. The Court set a hearing which was cancelled due to unforeseen schedule changes.

Now, having carefully reviewed the parties’ pleadings and Mr. Bluman's supplemental sworn statement, the Court finds itself sufficiently informed without the need for a hearing. For the following reasons, the Motion is GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

This case involves disputes stemming from the international purchase of a 9-year-old bay mare named Conbelleza for intended use in competitive equestrian show jumping. Plaintiffs Melissa Wight and Samantha Wight are a mother and daughter who both reside in Florida. In this action, Plaintiffs allege that the New York-based Defendants made fraudulent statements and misrepresentations to Plaintiffs in connection with the purchase of Conbelleza. According to the operative Amended Complaint [DE 42], the Defendants were the only ones who had direct communications with the examining veterinarian located in Europe and the sellers of Conbelleza who are also located in Europe.

In the Motion, Plaintiffs seek to compel a forensic examination of several telephones used by Defendant, including a Samsung Galaxy phone that is now in the possession of a third party – a family caretaker. Plaintiffs seek the forensic examination because they assert Defendants (1) deleted relevant text and WhatsApp communications with the overseas veterinarian and sellers pertaining to the sale of Conbelleza and (2) have selectively produced certain screenshots with incomplete context. Plaintiffs assert that a forensic examination is needed to determine when messages were deleted from the phone and whether any relevant messages or text communications can be recovered.

In response, Defendants maintain that they have provided all discoverable information that is within their possession and control. According to Defendants, Mr. Bluman deleted messages from his cellular phones monthly as a standard business practice. Defendants further maintain that Samsung Galaxy was gifted to the family caretaker prior to the start of this litigation, that the phone contains duplicative information, and that there are other less intrusive means to obtain the information sought such as issuing a subpoena to the overseas sellers. Defendants offer to allow a third-party technology specialist to examine certain specified iPhones still in Mr. Bluman's possession, while Defendants maintain control of these phones to protect their privacy. Defendants’ offer excludes the Samsung Galaxy and is also subject to the entry of a protective order to protect against disclosure of irrelevant, personal, and sensitive information on the phones.

*2 In their reply, Plaintiffs assert that Defendants’ discovery responses regarding their communications with the overseas individuals were suspiciously lacking in clarity from the start, that Defendants refused to cooperate once Plaintiffs’ counsel pressed further on the issue, and that Defendants’ offer for a forensic examination of phones except for the one that was gifted to the family caretaker is insufficient to determine the full scope of potentially relevant communications. Plaintiffs insist that that the family caretaker should be identified and made available for deposition. Plaintiffs also insist that they should be entitled to depose Mr. Bluman on all issues relating to the phones and that such deposition should not count as part of the seven hours otherwise allotted under governing rules.

II. DISCUSSION

The Federal Rules of Civil Procedure permit the inspection, testing, or sampling of ESI in the “possession, custody, or control” of a party. Fed. R. Civ. P. 34(a)(1)(A). Whether documents are in a party's control under Rule 34 is broadly construed. See, e.g., Searock v. Stripling, 736 F.2d 650, 653 (11th Cir.1984). “The burden is on the party seeking discovery to establish that the opposing party has ‘control’ over documents held by an affiliate.” Id. at 473 n. 2 (citing United States v. Int'l Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989)); see also Siegmund v. Bian, No. 12-62539-civ, 2016 WL 1359595, at *2 (S.D. Fla. Apr. 6, 2016) (J. Gayles), aff'd sub nom. Siegmund v. Xuelian Bian, 746 Fed. Appx. 889 (11th Cir. 2018).

The Eleventh Circuit has held that, for purposes of Rule 34, “[c]ontrol is defined not only as [physical] possession, but as the legal right to obtain the documents requested upon demand.” Searock, 736 F.2d at 653; see also Costa v. Kerzner Intern. Resorts, Inc., 277 F.R.D. 468, 471 (S.D.Fla. 2011) (J. Seltzer.) (“Control” extends to situations where a litigant has the “practical ability” to obtain materials on demand.) (citations omitted). The “control” inquiry is highly factual. See generally, In re Zantac (Ranitidine) Products Liab. Litig., 20-MD-2924, 2021 WL 1522449 (S.D. Fla. Apr. 16, 2021) (J. Reinhart). Here, Plaintiffs have not shown that the Samsung Galaxy is within the Defendants’ possession, custody, or control. For that reason, their request to compel production of that phone is denied.

Plaintiffs also make repeated assertions that Defendants failed to properly preserve ESI. “[T]he duty to preserve evidence arises when a party reasonably anticipates litigation.” Point Blank Sols., Inc. v. Toyobo Am., Inc., 09-61166-CIV, 2011 WL 1456029, at *11 (S.D. Fla. Apr. 5, 2011) (J. Goodman) (emphasis in original); see also, e.g., Floeter v. City of Orlando, 605CV-400-ORL-22KRS, 2007 WL 486633, at *5 (M.D. Fla. Feb. 9, 2007) (duty to preserve evidence “may arise if a party is on notice that documents or tangible items may be relevant or discoverable in pending or imminent litigation.”). As the party asserting spoliation, Plaintiffs bear the burden of proving that a duty to preserve existed. Plaintiffs seek ESI going back to June 1, 2019. They served their demand letter on Defendants on August 13, 2020 [DE 44-1]. Mr. Bluman submitted an affidavit swearing that he deletes items from his phone monthly [DE 58 at 1]. Mr. Bluman also swore that he transferred the Samsung Galaxy phone to the family caretaker in June 2020, which predates the demand letter [DE 58 at 1-2]. The existing record does not show that Defendants failed to preserve evidence after a duty to preserve attached. Therefore, to the extent Plaintiffs seek a remedy at this time for alleged spoliation, that request is denied without prejudice.

That being said, Defendants do not object to a forensic examination of several telephones currently in the Defendants’ possession to see if discoverable evidence can be recovered; but, they argue that protective procedures should be instituted to protect their privacy and to screen out irrelevant information. These kinds of protections are appropriate here. When Rule 34(a)(1) was amended to include ESI as a discovery source, the Advisory Committee cautioned 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.

*3 Having carefully considered the arguments presented, permitting a forensic examination of the phones still in Defendants’ physical possession, with necessary safeguards to protect Defendants’ privacy, is the best path forward at this time. The Court finds that text and WhatsApp messages responsive to Plaintiffs’ discovery requests and relating to the sale of Conbelleza are relevant to the claims in this case. The Court further finds that the protocol imposed by this Order provides for discovery from the phones that is proportional to the needs of the case. The protocol is designed to minimize the intrusion into Defendant's privacy while simultaneously permitting a search for relevant and proportional discovery.

This Order is without prejudice to Plaintiffs seeking to compel additional evidence in the future, including the Samsung Galaxy. It is also without prejudice to Defendants seeking a protective order in response. For now, Plaintiffs have sufficiently shown that additional relevant text and WhatsApp messages may be recovered from cellular phones used by Mr. Bluman during the relevant time frame, thus warranting a forensic examination of the phones within his physical possession

III. CONCLUSION

Based on the foregoing, the Court ORDERS AND ADJUDGES that Plaintiffs’ Motion to Compel Immediate Forensic Examination of Phone in Bluman's “Family Caretaker's” Possession Following Defendants’ Destruction of Evidence [DE 44] is GRANTED IN PART AND DENIED IN PART as follows:

DONE AND ORDERED in Chambers at West Palm Beach in the Southern District of Florida, this 8th day of June, 2021.