Uhlig LLC v. Cherry
Uhlig LLC v. Cherry
2022 WL 4771875 (S.D. Fla. 2022)
April 18, 2022
Matthewman, William, United States Magistrate Judge
Summary
The Court ordered Defendants to produce a complete forensic imaging of their current desktop computer, laptop computer, and cellular phone. After a Zoom VTC hearing, the Court gave Defendants until March 23, 2022 to obtain the forensic imaging results of the cellular phones. The parties then agreed to a jointly proposed resolution in which Defendants would have until April 22, 2022 to obtain bit-by-bit forensic images of Miller's and Cherry's cell phones and to employ a keyword search of each forensic image, producing to Plaintiffs all documents that are identified by such a search by May 2, 2022.
UHLIG LLC, et al., Plaintiffs,
v.
ADAM CHERRY, et al., Defendants
v.
ADAM CHERRY, et al., Defendants
Civil No. 21-cv-80837-MATTHEWMAN
United States District Court, S.D. Florida
Signed April 18, 2022
Counsel
Jodi-Ann Rene Tillman, Shutts, Bowen LLP, Fort Lauderdale, FL, Joseph William Bain, Patricia Anne Leonard, Shutts & Bowen LLP, West Palm Beach, FL, Greer S. Lang, Pro Hac Vice, Juliet A. Cox, Pro Hac Vice, Kutak Rock LLP, Kansas City, MO, Richard A. Olmstead, Pro Hac Vice, Kutak Rock LLP, Wichita, KS, for Plaintiffs.Charles Edward Stoecker, McGlinchey Stafford, Fort Lauderdale, FL, Robert David Eckard, The Law Office of Robert Eckard, Associates, P.A., Palm Harbor, FL, Stephen P. Beiser, Pro Hac Vice, McGlinchey Stafford, PLLC, New Orleans, LA, for Defendants Adam Cherry, Helen Miller, Mahalo Enterprises Corporation, Tapp It Technology, LLC.
Matthewman, William, United States Magistrate Judge
ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION [DE 105] AND ISSUING ADDITIONAL DISCOVERY RULINGS
*1 THIS CAUSE is before the Court upon the following: (1) Adam Cherry, Kim A. Cherry, Helen Miller, Mahalo Enterprises Corporation d/b/a Resident Times and/or Today's Livin, and Tapp It Technology, LLC's (“Defendants”) Motion for Reconsideration or, Alternatively, Modification of Omnibus Discovery Order Dated January 28, 2022 (“Motion for Reconsideration”) [DE 105]; (2) Plaintiffs Uhlig LLC and IHPS Holdings, LLC (“Plaintiffs”) response in opposition [DE 111]; (3) Defendants’ reply [DE 113]; (4) the Court's March 21, 2022 Interim Order on Defendants’ Motion for Reconsideration (“Interim Order”) [DE 119]; and (5) the Joint Notice Regarding Status of Discovery Disputes [DE 124], filed pursuant to the Court's Interim Order. The Court held a status conference re: discovery via Zoom video teleconference (VTC), on April 15, 2022.
PROCEDURAL BACKGROUND
On January 28, 2022, the Court entered an Omnibus Discovery Order [DE 99], stating that Defendant Helen Miller “agreed to produce a complete forensic imaging of her current desktop computer and her laptop computer” and “agreed to produce a forensic imaging of her current cellular phone.” [DE 99 at 3]. The Order also adopted paragraph 6 of the parties’ Joint Notice Regarding Discovery Disputes [DE 97], in which the parties maintained that Defendant Adam Cherry “agreed to produce a complete forensic image, with metadata intact, of his cell phone with Cherry to bear the cost of such imaging.” [DE 99 at 2; DE 97 at 4].
Thereafter, Defendants filed a Motion for Reconsideration [DE 105], contending that they were seeking reconsideration of the Court's January 28, 2022 Order [DE 99] for two reasons: (1) that Defendants Adam Cherry and Helen Miller never agreed to voluntarily produce their electronic devices for a forensic audit, as such arrangement was made by predecessor counsel without their consent; and (2) that newly discovered evidence arising out of the forensic audit results—results of which were not available when the January 28, 2022 Order was entered—“ma[de] compliance with the Order cost-prohibitive, soundly inequitable, and ... certainly disproportionate to the needs of the case.” [DE 105 at 1–2]. With respect to the latter argument, Defendants argued that predecessor counsel had previously represented to the Court that the forensic imaging results returned “over 76,000 pages of documents and 10,000 files and/or images.” Id. at 4.
Subsequently, after Plaintiffs filed a response to the Motion for Reconsideration [DE 111] and Defendants filed a reply [DE 113], the Court held a March 18, 2022 Zoom VTC hearing. [DE 118]. During the hearing, Defendants argued that the Motion for Reconsideration solely concerned production of Defendants Adam Cherry's and Helen Miller's cellular phones. Moreover, Defendants’ current counsel, Charles Stoecker, Esq., represented to the Court that predecessor counsel had the results of the forensic images of Defendants Adam Cherry's and Helen Miller's cellular phones but was refusing to turn them over. Thus, Defendants asserted that they were unable to comply with the Court's January 28, 2022 Omnibus Order.
*2 Accordingly, in the Court's March 21, 2022 Interim Order, the Court gave Defendants until March 23, 2022 to either obtain the forensic imaging results of the cellular phones and file a Notice stating that they had received such, or file an appropriate motion requesting relief. [DE 119 at 3]. The Court stated that, assuming Defendants were able to obtain the forensic imaging results, “Defendants must advise the Court of the amount of time needed to complete a diligent search of the data and produce information that is responsive to Plaintiffs’ requests.” Id. Because of the uncertainty surrounding discovery production, the Court reserved a final ruling on Defendants’ Motion for Reconsideration and set a status conference re: discovery to be held via Zoom VTC on April 15, 2022, with a Joint Notice due on or before April 13, 2022. Id. at 3–4.
On March 23, 2022, Defendants timely filed a Notice of Compliance with the Court's Interim Order on Defendants’ Motion for Reconsideration [DE 120]. Defendants informed the Court that they had independently obtained a copy of Defendant Adam Cherry's forensic audit and that the auditor who had audited both Defendants Adam Cherry's and Helen Miller's electronic devices would perform another audit of Defendant Helen Miller's cellular phone. [DE 120 at 2]. Defendants further informed the Court that an associate at predecessor counsel's law firm “confirmed that she was shipping a hard drive which contain[ed] the audits.” Id. Consequently, Defendants “anticipate[d] that a full and complete review of the forensic audits for both A. Cherry and H. Miller [would] be completed within ten days of March 23, 2022.” Id.
Satisfied with Defendants’ Notice of Compliance, the Court awaited the parties’ Joint Notice. On April 13, 2022, the parties then filed a Joint Notice Regarding Status of Discovery Disputes (“Joint Notice”) [DE 124], in which the parties represented the following:
1. Defendants received what they “believed” to be a forensic audit of Defendants Adam Cherry's and Helen Miller's cellular phones from the individual who had originally conducted the forensic audit. [DE 124 at 1]. Defendants also received a hard drive from predecessor counsel containing a 145 MB .pdf file which “they understood ... to be the results of the forensic audits of Cherry's and Miller's cellular phones.” Id. at 2.
2. Utilizing a list of search terms provided by Plaintiffs, on April 1, 2022, Defendants produced a 78-page .pdf document “that contained what appeared to Plaintiffs to be excerpts from a report generated by Compelson MOBILedit Forensic software.” Id.
3. Concerns arose that the April 1, 2022 report “showed the existence of potentially responsive and/or relevant documents that had not been previously produced.” Id. at 3. After correspondence between the parties, “it became apparent to Plaintiffs’ counsel that Defendants’ counsel may not have received and therefore could not and did not search the forensic images of the cell phones that Cherry and Miller were ordered to obtain.” Id. at 3.
4. Unfortunately, Defendants had received only a summary report, in .pdf format, which Defendants mistakenly understood to be the forensic audits of the cellular phones. Id. “Thus, when Defendants’ counsel performed a keyword search, [the keyword search] was only searching file names listed within that summary report and not the contents of the thousands of documents and files identified in the report.” Id.
So, in effect, nothing was accomplished by Defendants regarding this interminable discovery dispute because their counsel did not search all the data and instead mistakenly only searched the summary report. Despite the aforementioned discovery issues, the parties have now agreed to a jointly proposed resolution relating to the forensic images of the cellular phones, in which Defendants would have until April 22, 2022 “to obtain bit-by-bit forensic images of Miller's and Cherry's cell phones” at Defendants’ expense, and to “employ a keyword search of each forensic image using the terms and phrases previously provided by Plaintiffs[,] ... produc[ing] to Plaintiffs all documents that are identified by such a search” by May 2, 2022. Id. at 5.
*3 At the April 15, 2022 Zoom VTC hearing conducted thereafter, the parties remained willing to abide by the jointly proposed resolution and repeated the assertions contained within the Joint Notice. In fact, Defendants’ counsel stated that he had already recently received the bit-by-bit forensic images of Defendants Adam Cherry's and Helen Miller's cellular phones. It is with this background in mind that the Court now turns to Defendants’ Motion for Reconsideration [DE 105] and provides additional discovery rulings in connection with the March 21, 2022 Interim Order.
ANALYSIS
“Reconsideration is an extraordinary remedy to be employed sparingly.” Holland v. Florida, No. 06-20182-CIV-SEITZ, 2007 WL 9705926, at *1 (S.D. Fla. June 26, 2007) (citation and internal quotation marks omitted). A motion for reconsideration may be granted based on three major grounds: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice. Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1369 (S.D. Fla. 2002). In other words, “[t]he only grounds for granting a motion for reconsideration ‘are newly-discovered evidence or manifest errors of law or fact.’ ” United States v. Dean, No. 20-11603, 2020 WL 7655426, at *2 (11th Cir. Dec. 23, 2020) (per curiam) (quoting Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (per curiam)). “A party's disagreement with the court's decision, absent a showing of manifest error, is not sufficient to demonstrate entitlement to relief.” Id. (citing Jacobs v. Tempur-Pedic Int'l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010)).
Here, Defendants sought reconsideration of the Court's January 28, 2022 Omnibus Discovery Order based on the assertion that Defendants Adam Cherry and Helen Miller never agreed to voluntarily produce their electronic devices for a forensic audit, and based upon it being “cost-prohibitive, soundly inequitable, and ... certainly disproportionate to the needs of the case” to review the “76,000 pages of documents and 10,000 files and/or images.” [DE 105 at 2, 4]. Defendants were therefore seeking reconsideration based on the availability of new evidence, as there was no intervening change in controlling law or any need to correct clear error or prevent manifest injustice. See Burger King Corp., 181 F. Supp. 2d at 1369.
However, during the March 18, 2022 Zoom VTC hearing, rather than proceeding on the arguments contained within the Motion for Reconsideration, Defendants instead largely argued that they could not comply with the Court's January 28, 2022 Omnibus Order because predecessor counsel was refusing to turn over the forensic images of Defendants Adam Cherry's and Helen Miller's cellular phones. Since that date, and the Court's subsequent March 21, 2022 Interim Order, Defendants have been compliant in attempting to provide Plaintiffs with the forensic audit results, and have agreed on certain keyword search terms, as evidenced by the parties in the Joint Notice. [DE 124 at 5].
With Defendants’ previous agreement to obtain and provide information from the forensic images of the cellular phones, and Defendants’ current proposed agreement to obtain bit-by-bit forensic images of the cellular phones by April 22, 2022 and to produce all responsive documents identified by Plaintiffs’ proposed keyword search by May 2, 2022 [DE 124 at 5] in mind, the Court finds that Defendants have abandoned the arguments contained within the Motion for Reconsideration. Indeed, it seems to the Court that Defendants’ Motion for Reconsideration was filed as a result of Defendants’ prior inability to obtain the forensic imaging of the cellular phones, and therefore, Defendants’ inability to comply with the Court's January 28, 2022 directive to “review the forensic imaging and produce the information that is relevant and responsive to Plaintiffs’ discovery requests to Plaintiffs’ counsel.” [DE 99 at 3].
*4 But even assuming Defendants had not abandoned their arguments, the Court finds that a forensic image of the cellular phones of Defendants Adam Cherry and Helen Miller is warranted given the facts of the case and the allegations of spoliated evidence. Further, the Court finds that it would not be unduly burdensome to provide responsive documents from the cellular phones, as Defendants’ argument in the Motion for Reconsideration ignores the realities of ESI—specifically, the ability to utilize keyword searches and cost-effective ESI programs to find and provide responsive documents. The Court thus finds that Defendants have not met their very high burden for the Court to reconsider its prior discovery ruling, and that Defendants’ Motion for Reconsideration [DE 105] is due to be denied. While the Court's March 21, 2022 Interim Order reserved a final ruling on the Motion for Reconsideration because of the uncertainty surrounding discovery [DE 119 at 3], it is clear that the remaining discovery issues are no longer related to the Motion for Reconsideration.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendants’ Motion for Reconsideration [DE 105] is DENIED.
2. As agreed by the parties, Defendants shall have until April 22, 2022 to obtain the bit-by-bit forensic images of Adam Cherry's and Helen Miller's cellular phones, with Defendants to bear the costs of creating new forensic images should new forensic images be required. Although Defendants’ counsel stated that he had already received the images at the time of the hearing, he had not yet had time to fully review them. Thus, in an abundance of caution, the Court declines to disturb the parties’ agreed April 22, 2022 deadline.
3. As also agreed by the parties, Defendants shall “employ a keyword search of each forensic image using the terms and phrases previously provided by Plaintiffs and shall produce to Plaintiffs all documents that are identified by such a search. For purposes of this requirement, the word ‘document’ is intended to have its broadest meaning and should include but not be limited to, pdf files, Word (or similar) files, spreadsheets, presentations, .jpeg .png or other image files, SMS and other messaging files, and emails.” [DE 124 at 5]. Defendants shall have until May 2, 2022 to produce all relevant, responsive, and non-privileged documents arising out of the keyword search.
4. The Court cautions the parties that they must promptly produce fulsome discovery. To that end, the Court reserves jurisdiction and ruling on whether sanctions or Rule 37 cost shifting should be imposed upon Defendants and/or Defendants’ current counsel.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, in the Southern District of Florida, this 18th day of April, 2022.