*1 This matter appears before the Court on Plaintiff Hector Garcia's request for a discovery dispute conference and Motion for Leave to File Motion for Sanctions. (Doc. 36). The Court held a telephone conference with counsel for both Parties present on February 7, 2023. After careful consideration, the Court rules as follows.

I. Background

The current dispute involves the expert hired by Plaintiff to complete forensic imaging of Defendant Rosini's iPhone (the “Expert”), which the Parties previously agreed to conduct at Defendants' counsel's office.[1] Plaintiff has raised two issues. First, Plaintiff contends that Defendants' counsel's repeated inclusion of the Expert on email threads between counsel, as well as Defendants' counsel's engagement of the Expert on a different matter (and conversations about the other matter while the Expert's work in this matter was ongoing), constituted improper attempts to influence the Expert.

Second, while the imaging was in progress, Defendants' counsel entered the closed conference room in his office where the iPhone and imaging equipment had been left by the Expert (with the agreement of all counsel to return the next day) and re-entered the iPhone's passcode.[2] After entering the passcode, Defendants' counsel emailed Plaintiff's counsel and the Expert to inform them he had re-entered the passcode and asked if there was a problem. When both counsel and the Expert returned the next day, the imaging software showed an “extraction error.” At that time, Plaintiff's counsel decided to suspend the imaging and return the phone to Defendant. Defendants' counsel requested that the Expert remain so that they could discuss an unrelated matter and the two did meet later that day. In light of the interactions between the Expert and Defendants' counsel, Plaintiff terminated his engagement with the Expert.

Plaintiff's counsel contacted the Court via the Court's discovery dispute procedure and requested an exception to the Court's Standing Order so he could “fully brief the matter on the record, have an evidentiary hearing, and preserve the issue for appellate review.” (D. Martin Email of February 2, 2023 12:53pm). After hearing from both sides, the Court responded by setting the matter for a telephone conference with all counsel on February 7, 2023. In advance of the telephone conference, Plaintiff filed his Motion for Leave to File Motion for Sanctions. (Doc. 36). During the telephone conference, Plaintiff primarily argued that Defendants should reimburse Plaintiff's counsel for his time in selecting and retaining the Expert as well as for the costs of retaining a new expert to conduct the imaging, and that Defendants' counsel should be disqualified from continuing in this action.

II. Legal Standard

*2 The district court has broad discretion to control discovery. Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir. 1993). This power includes the ability to impose sanctions on uncooperative litigants. Id. (citing Fed. R. Civ. Pro. 37(b)(2)(C)); see also Harris v. Chapman, 97 F.3d 499, 506 (11th Cir. 1996) (“District judges are accorded wide discretion in ruling upon discovery motions, and appellate review is accordingly deferential.”).

A court further has inherent authority “to prohibit or remedy litigation practices which raise ethical concerns or may constitute ethical violations.” C.H. by Hilligoss v. Sch. Bd. of Okaloosa Cnty. Fla., 476 F. Supp. 3d 1214, 1223 (N.D. Fla. 2020) (quoting Chancellor v. Boeing Co., 678 F. Supp. 250, 253 (D. Kan. 1988)). In fashioning the appropriate remedy, the Court takes into consideration several factors, including the potential prejudice to the parties and “whether counsel incorrectly interpreted unsettled law,” or “displayed an inappropriate disregard for the unsettled nature of that law.” Id. (quoting Univ. of Patents, Inc. v. Kligman, 737 F. Supp. 325, 328 (E.D. Pa. 1990)).

III. Discussion

Plaintiff contends that the Expert is a non-testifying trial preparation expert under Federal Rule of Civil Procedure 26(b)(4)(D), and that under Georgia law, Plaintiff's communications with him are privileged. Rule 26(b)(4)(D) states, in relevant part, “Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.”[3]

The Court finds that Defendants' counsel's repeated communications with the Expert with regard to this matter were inappropriate and discourteous, particularly given his violation of Plaintiff's counsel's repeated requests and instructions not to communicate directly with the Expert or include him on emails. The most egregious of these communications was an email in which Defendants' counsel copied the Expert and gave his impression that Plaintiff was “either confused, misremembers, or is being creative in an attempt to support your effort to use spoliation in lieu of evidence to buttress your client's story.” (R. Rigrish Email of January 19, 2023 3:18pm).

The Court does not, however, view the communications by Defendants' counsel as an attempt to “discover facts known or opinions held” by the Expert in violation of the Rule. Further, the Court does not find that Defendants' counsel interfered with Plaintiff's ability to have privileged communications with the Expert. The Court also does not find Defendants' counsel's engagement of the Expert on an unrelated matter to be in violation of the Rule.

With regard to the re-entering of the passcode during the imaging process, the Court cannot conclude that Defendants' counsel “tampered” with the iPhone or imaging equipment. Defendants' counsel could have acted more prudently, but the Court cannot make a finding that Defendants' counsel intended to disrupt or interfere with the imaging process. The Court does not find that Defendants' counsel's conduct violated any Federal Rule of Civil Procedure or Georgia Rule of Professional Conduct. Nor can the Court draw any correlation between Defendants' counsel's conduct and the “extraction error” that ultimately occurred, and certainly cannot derive causation.

*3 Under these circumstances, disqualification of counsel is not appropriate. See C.H. by Hilligoss v. Sch. Bd. of Okaloosa Cnty. Fla., 476 F. Supp. 3d 1214, 1224 (N.D. Fla. 2020) (“The disqualification of counsel of one's choosing “is an extraordinary measure that should be resorted to sparingly.”) (quoting Metrahealth Ins. Co. v. Anclote Psychiatric Hosp., 961 F. Supp. 1580, 1581 (M.D. Fla. 1997); see also In re BellSouth Corp., 334 F. 3d 941, 961 (11th Cir. 2003) (“A party is presumptively entitled to counsel of his or her choice, and that right should be overridden only if compelling reasons exist.”). As Plaintiff's counsel made the decision not to move forward with the Expert, the Court will not order that the Defendants pay for the time spent by Plaintiff's counsel to find another expert or to prepare the motion for sanctions.

The Court does find it appropriate, given the conduct of Defendants' counsel, to direct the following parameters as the Parties continue with discovery. The Court hereby ORDERS:

All further relief requested by Plaintiff is DENIED. The Parties are reminded of their obligations under the Federal Rules of Civil Procedure, the Court's Local Rules, and the Court's Standing Order. Violation of this Order may result in sanctions as the Court deems appropriate.

IV. Conclusion

For the foregoing reasons, the Court directs the Parties to proceed with discovery in compliance with this Order. The Court DENIES Plaintiff's Motion for Leave to File Motion for Sanctions (Doc. 36).

SO ORDERED this 9th day of February, 2023.