*1 This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.

Now before the Court is Plaintiff's Motion to Compel Discovery, Request for Expedited Hearing, and Relief from Summary Judgment Response Deadline [Doc. 36]. Defendants responded in opposition to the motion [Doc. 39], and Plaintiff filed a reply [Doc. 45]. The motion is ripe for adjudication. Accordingly, for the reasons explained below, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's motion [Doc. 36].

I. ANALYSIS

Plaintiff moves the Court for the following relief: (1) an order compelling Grazyna Gammons (“Ms. Gammons”), Kelley Patten (“Ms. Patten”) and Adroit Medical Systems, Inc. (“Adroit”) to produce certain communications, (2) an order compelling Ms. Gammons and Ms. Patten to produce their personal cellular telephones so that Plaintiff may conduct a forensic analysis to search for electronic communications, subject to attorney-client and spousal privileges, during the period of September 1, 2019, through March 31, 2019, and (3) relief from the current briefing schedule on the dispositive motion so that Plaintiff can obtain all discovery to which he is entitled [Doc. 36 pp. 2–3].

By way of background, Plaintiff served Requests for Production of Documents (“RFPs”) to Ms. Gammons, Ms. Patten, and Adroit generally seeking production of text messages or other electronic communications that they sent/received from January 1, 2019, to the present, which discussed or referenced Plaintiff [See Doc. 37 pp. 3–4; Docs. 37-1 – 37-3]. Ms. Gammons stated that she did not have responsive documents. Ms. Patten produced text message exchanges between herself and her husband, Clarence Patten, and a personal friend [Doc. 37 at 6].

During Ms. Gammons's deposition, however, she testified that she communicated with her son via text message or e-mail from March 7 to March 12, 2022 [Doc. 37-4 pp. 2–3]. Specifically, Ms. Gammons testified that on March 7, 2020, she told her son what happened, and they had an ongoing discussion “as things developed” [Id. at 3]. Ms. Gammons further stated that the communications with her son would be on her phone and that she does not delete anything [Id. at 3–4]. Ms. Gammons also testified that she had communications with Ms. Patten about Plaintiff during the timeframe of March 7–12, 2020 [Id. at 5]. In addition, Adroit manager, Ed Tymitz (“Tymitz”), testified in his deposition that he received text messages from Ms. Patten during the period of March 7, 2020, through March 12, 2020. Specifically, Tymitz testified:

[Doc. 37-5 p. 3]. Based on the above testimony, Plaintiff argues that Ms. Patten, Adroit, and Ms. Gammons failed to produce discovery.

Defendants respond that Plaintiff's mere speculation is insufficient to support the relief requested and that his motion should be denied [Doc. 39]. Following Ms. Gammons's deposition testimony, defense counsel asked her about the text messages and determined that Ms. Gammons misunderstood the questions. Ms. Gammons did not speak to her children by way of text messages. Instead, she communicated with her son verbally by telephone. In addition, she communicated with Ms. Patten in person. Ms. Gammons has performed a second search after her deposition, but there are no additional responsive documents.

*2 Defendants acknowledge that Tymitz testified that he received a text from Ms. Patten on March 7, 2020, about being locked out along with a picture. Both Tymitz and Ms. Patten recall the text, but neither of them have it on their cell phones. According to Defendants, Tymitz regularly clears his personal cell phone of old text messages. Defense counsel personally reviewed Tymitz's cell phone and confirmed that he does not retain text messages. Ms. Patten periodically deletes text messages, and she does not have this specific text message. When this litigation began, Defendants were instructed not to delete e-mails or text messages, and they have not done so. Defendants state that such deletions happened long before the litigation began, and there is nothing further to produce.

Defendants argue that “Plaintiff's skepticism and desire to check the veracity of Defendants’ discovery responses is insufficient to justify the drastic relief of a forensic examination of their personal cell phones” [Doc. 39 p. 3 (citing Tingle v. Hebert, No. CV 15-626-JWD-EWD, 2018 WL 1726667, at *1 (M.D. La. Apr. 10, 2018))]. Defendants further assert that “[c]ourts permitting forensic examination do so where the moving party has demonstrated its opponent has defaulted on its discovery obligations by unwillingness or failure to produce relevant information by more conventional means” [Id. at 4]. Defendants state that this is not the case here because they have complied with their discovery obligations and produced responsive text messages and e-mails that they have in their possession.

Plaintiff replies [Doc. 45] that Ms. Gammons testified under oath that such communications existed and that he should not be expected to simply accept Ms. Gammons's dismissive explanation. In addition, Tymitz testified that he received a text message from Ms. Patten, and that on March 7, 2020, Defendants were in the midst of a dispute that led to the litigation. Thus, Plaintiff argues that Defendants should have been aware that they needed to retain evidence. Plaintiff also states that “Ms. Patten's attempt to explain her deletion of relevant electronic evidence is belied by the record” because while she claims that she deleted Tymitz's text message that he sent on March 7, 2020, she produced other text messages that occurred before this date [Doc. 45 p. 2]. Plaintiff states that he will pay for the examination, but if the results indicate a failure to provide documents or deletion of responsive documents, Plaintiff reserves the right to seek reimbursement of the incurred expenses under Rule 37.

“[C]ourts have permitted restrained and orderly computer forensic examinations where the moving party has demonstrated that its opponent has defaulted in its discovery obligations by unwillingness or failure to produce relevant information by more conventional means.” NOLA Spice Designs, LLC v. Haydel Enters., Inc., No. 12-2515, 2013 WL 3974535 (E.D. La. Aug. 2, 2013) (citing White v. Graceland College Center, No. 07-2319-CM, 2009 WL 722056, at *7 (D. Kan. Mar. 18, 2009)). Defendants assert that the Court should not allow a forensic examination based on Plaintiff's “mere speculation” [Doc. 39 p. 1]. But Plaintiff has produced more than “mere speculation.” Here, Ms. Gammons and Tymitz testified that they sent/received text messages that were the subject of Plaintiff's discovery requests. Specifically, Ms. Gammons testified as follows:

[Doc. 37-4 pp. 3–4]. While the above deposition testimony is not clear whether Ms. Gammons had electronic communications with Ms. Patten, it is clear that Ms. Gammons electronically communicated with her son. Ms. Gammons did not produce these messages. Defendants claim that Ms. Gammons did not understand the question but offered no explanation or evidence as to the alleged confusion.

Further, Defendants claim that the text message that Ms. Patten sent Tymitz no longer exists, but they offer no evidence regarding Tymitz's or Ms. Patten's deletion practices. According to Plaintiff's representation, Ms. Patten produced other text messages during this time period. Thus, this is not the case where Plaintiff has requested a forensic examination based on mere speculation. FCA US LLC v. Bullock; 329 F.R.D. 563, 567 (E.D. Mich. Jan. 18, 2019) (“Courts have recognized that discrepancies or inconsistencies in the responding party's discovery responses may justify a party's request to allow an expert to create and examine a mirror image of a hard drive.” (quoting Hawkins v. Center for Spinal Surgery, No. 12-1125, 2015 WL 3795297, at *3 (M.D. Tenn. June 18, 2015))).

The Court will therefore grant Plaintiff's request for a forensic examination of Ms. Gammons's and Ms. Patten's cell phones. The Court, however, finds Plaintiff's proposed time period of September 1, 2019, through March 31, 2020, overly broad in relation to the testimony. Ms. Gammons testified that she exchanged texted messages about Plaintiff from March 7, 2020, to March 12, 2020, and Tymitz testified that he received a text message from Ms. Patten on March 7, 2020. Given the intrusive nature of a forensic examination, the Court LIMITS the examination to the time period of March 1, 2020, to March 19, 2020, which is a week before and one week after the text messages were sent/received. John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008) (recognizing that forensic imaging is a permissible discovery use but should be treated cautiously where the request is broader than the data's relevance to the case); Lipian v. Univ. of Mich., No. 18-13321, 2019 WL 6339646, at *2 (E.D. Mich. Nov. 27, 2019) (“The Court's intention was to restrict the forensic examination to the narrowest parameters necessary to permit Defendants to investigate its theory that text messages are missing from the record.”). The parties SHALL complete the forensic examination by November 30, 2022. In light of the above, there is no need for the Court to order these Defendants to produce any communications.

Finally, Plaintiff also requests relief on his response deadline to Defendants’ motion for summary judgment. The Court observes that Plaintiff responded to the Defendants’ motion for summary judgment on October 14, 2022 [Doc. 41]. The text messages that Ms. Gammons and Tymitz referenced in their depositions do not appear to affect the parties’ arguments that were raised in their dispositive filings. To the extent that Plaintiff discovers any additional messages that affect the summary judgment motion, Plaintiff SHALL file a motion on or before December 2, 2022, requesting leave to file a supplemental brief pursuant to Local Rule 7.2. Plaintiff's motion shall explain how any uncovered messages affect the arguments raised in the dispositive motion filings.

II. CONCLUSION

*4 Accordingly, for the reasons explained above, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion to Compel Discovery, Request for Expedited Hearing, and Relief from Summary Judgment Response Deadline [Doc. 36].

IT IS SO ORDERED.