*1 This cause is before the Court on the Plaintiff's Motion for Order to Show Cause Why Defendant Should Not be Held in Civil Contempt (Doc. 44), and the Defendant's Response in Opposition. (Doc. 67). The Court held a hearing on September 22, 2022, during which the parties came to an agreement regarding the matters in dispute.

I. BACKGROUND

On September 28, 2021, Plaintiff National Staffing Solutions, Inc. (“National”) filed a complaint against its former employee, Heidi Sanchez, for violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (“CFAA”), the Florida Computer Abuse and Data Recovery Act, Fla. Stat. § 668.802, et seq. (“CADRA”), and for breach of contract. (Doc. 1). According to the allegations of the Complaint, National is an employment agency that provides temporary and permanent placement of healthcare professionals across the United States. (Id., at ¶ 8). As part of her employment with National, on April 17, 2014, Ms. Sanchez executed a Noncompetition, Nonsolicitation, and Confidentiality Agreement (the “Agreement”), which required Ms. Sanchez to return to National all documents and electronically stored information (“ESI”) related to National provided to or acquired by her in connection with her employment, upon the request of National or upon the termination of her employment. (Id., at ¶ 13).

The Agreement further required Ms. Sanchez to provide passwords for all ESI, including information stored on smartphones, iPads, laptops, storage mediums such as Dropbox, and any other systems that store electronic information. (Id., at ¶ 14). National had the right to collect the devices and remove the ESI. (Id.). And during this litigation the Plaintiff was granted a Preliminary Injunction, which imposes a duty on Ms. Sanchez to provide the Plaintiff access to devices, email accounts, and other systems containing the Plaintiff's confidential data. (Doc. 35). The Plaintiff contends in the instant motion that Ms. Sanchez has failed to comply with the obligations imposed by the Preliminary Injunction. (Doc. 44).

II. LEGAL STANDARDS

A party seeking remedies for civil contempt must establish by clear and convincing evidence that the purported contemnor violated the court's prior order(s). Chairs v. Burgess, 143 F.3d 1432, 1436 (11th Cir. 1998); see also Ameriprise Fin. Servs., Inc. v. Lawton, No. 2:11-cv-573-FtM-29SPC, 2011WL6412424, at * 1 (M.D. Fla. Dec. 21, 2011) (the evidence must establish that the order was violated). The clear and convincing proof must demonstrate that: “1) the allegedly violated order was valid and lawful; 2) the order was clear and unambiguous; and 3) the alleged violator had the ability to comply with the order.” See Georgia Power Co. v. N.L.R.B., 484 F.3d 1288, 1291 (11th Cir. 2007). “Ambiguities should be resolved in favor of the party charged with contempt.” United States v. Barnette, 902 F. Supp. 1522, 1532 (M.D. Fla. 1995). Once a prima facie showing of a violation is made, the burden shifts to the alleged contemnor “to produce evidence explaining his noncompliance” at a “show cause” hearing. Citronelle–Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297, 1301 (11th Cir.1991).. If the alleged contemnor makes a sufficient showing, the burden shifts back to the party seeking to show contempt to prove the ability of the alleged contemnor to comply with the court's prior order. Michael Grecco Prods., Inc. v. Soffersapp, LLC, No. 16-24966-CIV, 2017 WL 5665370, at *3 (S.D. Fla. Sept. 27, 2017), report and recommendation adopted, No. 16-24966-CIV, 2017 WL 5665382 (S.D. Fla. Nov. 8, 2017).

III. DISCUSSION

*2 The Plaintiff submits that Ms. Sanchez disclosed only two devices as possibly containing National's data — an iPhone and a Dell laptop computer. (Doc. 44, at 4). The Plaintiff contends that its forensic analysis shows that devices and accounts were not disclosed by Ms. Sanchez in violation of the Preliminary Injunction. (Id. at 8). The Plaintiff further alleges that Ms. Sanchez's prior counsel withheld 678 documents but has failed to file a privilege log, thus depriving National the opportunity to challenge the asserted privilege. (Id. at 4, n. 1).

Both Ms. Sanchez and her counsel expressed a willingness to work with counsel for National to identify devices, email accounts, and other systems within Ms. Sanchez's possession, custody, or control that store information and contain confidential data related to National's business. Accordingly, the Court did not rule on the merits of the Plaintiff's motion. Instead, the Court with the parties’ consent entered the following scheduling order:

IV. CONCLUSION

*3 The Defendant has been cautioned that failure to comply with the Court's Preliminary Injunction and with the deadlines established in this Order may result in a finding of civil contempt or other sanctions, including having her defenses stricken and entry of judgment in favor of the Plaintiff.

For the foregoing reasons, the Plaintiff's Motion for Order to Show Cause (Doc. 44) is DENIED WITHOUT PREJUDICE and the Parties are ORDERED to comply with the deadlines set forth in Section III (1–9) herein.

DONE AND ORDERED in Orlando, Florida on September 22, 2022.