Wegman v. U.S. Specialty Sports Ass'n, Inc.
Wegman v. U.S. Specialty Sports Ass'n, Inc.
2024 WL 1623423 (M.D. Fla. 2024)
February 15, 2024

Norway, Robert M.,  United States Magistrate Judge

Failure to Produce
Possession Custody Control
Waiver
Mobile Device
Inaccessible
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Summary
The Court ordered Defendant DeDonatis to return devices containing ESI to Plaintiff USSSA. However, DeDonatis failed to provide necessary login information or passcodes to access the ESI, citing his Fifth Amendment privilege against self-incrimination. The Court held an evidentiary hearing and determined that DeDonatis could not invoke his personal privilege and ordered him to comply with the order by providing the necessary information to access the ESI. The parties were unable to agree on a vendor, and the Court amended its order to specify three vendors and directed DeDonatis to bear the costs.
Additional Decisions
BRIAN WEGMAN; and THOMAS HORROM, Plaintiffs,
v.
THE UNITED STATES SPECIALTY SPORTS ASSOCIATION, INC.; DONALD DEDONATIS, III; RICHARD FORTUNA; WENDY ANDERSON; COURTNEY CEO; and JACOB HORNBACHER, Defendants
Case No. 6:23-cv-1637-RBD-RMN
United States District Court, M.D. Florida
Filed February 15, 2024
Norway, Robert M., United States Magistrate Judge

ORDER

*1 This cause comes before the Court after a review of the docket. The Court previously addressed, in response to several motions, a discovery dispute between Defendant The United States Specialty Sports Association, Inc., (“USSSA”) and Defendant Donald DeDonatis, III, regarding the collection of electronically stored information (“ESI”) from several devices that are owed by USSSA but were in DeDonatis’ possession.
In November 2023, DeDonatis moved for a discovery order authorizing him to copy the contents of three devices—a notebook computer and two Apple iPhones—before returning the devices to USSSA. Dkt. 76. After considering argument on the motion at a hearing, Dkt. 92, the Court denied the motion. See Dkt. 94.
The dispute continued into December. For this reason, USSSA moved for an order requiring DeDonatis to return the devices and enjoin him from duplicating the ESI on the devices. Dkt. 98. After considering the arguments presented in the motion and response, the Court granted USSSA's motion and directed DeDonatis to return the devices to USSSA. Dkt. 107. With some difficultly (See Dkts. 108, 109), the devices were eventually returned to USSSA, as directed. Dkt. 112.
Though the devices were returned to USSSA in December, the dispute continued into the new year. On January 16, USSSA filed another discovery motion seeking relief against DeDonatis. Dkt. 118. There, USSSA informed the Court that it had been unable to access the documents, data, and information on the devices due to DeDonatis’ failure to provide necessary login information or passcodes. Id. at 2–3. In its third order on this dispute, the Court denied the motion because USSSA did not appear to have propounded any formal discovery requests on DeDonatis seeking the information needed to access the devices. Dkt. 119. Further, in view of the lengthy delay engendered by this dispute, the Court found good cause to shorten the time for DeDonatis to respond to such discovery requests. Id. at 2.
The dispute did not end there. As directed, USSSA propounded several interrogatories seeking the information needed to access the devices. Dkt. 125. DeDonatis answered some interrogatories directed to an iPhone used by his spouse and the laptop, and responded to other interrogatories by an objection that answering would violate his right against self-incrimination under the Fifth Amendment of the United States Constitution. Dkt. 125-1 at 13–20. The Court noticed and held an evidentiary hearing on the motion on February 5, 2024. Dkts. 128, 135.
After hearing testimony from USSSA's corporate representative, general counsel, and forensic analysis, as well as from DeDonatis, the Court found that the devices were provided to DeDonatis for his use as CEO of USSSA. Dkt. 140 (“Hr. Tr.”) at 133:8–15. The Court further determined that DeDonatis does not have a personal interest in the devices or the ESI on those devices. Id. 135:9–11. He possessed and used those devices in his capacity as an officer of USSSA, and the ESI on those devices are USSSA's business records. Id. 135:12–18.
*2 Based on these findings of fact, the Court held that DeDonatis could not, as a custodian of USSSA's business records, invoke his personal Fifth Amendment privilege to prevent the collection and production of the ESI on the devices. Hr. Tr. 135:25–138:2. The Court also rejected DeDonatis’ argument that the act of providing the information needed to access the devices would be testimonial and therefore privileged under the Fifth Amendment. And at least as to the iPhone he used and the laptop, the Court found that providing the information needed to access the devices would not be testimonial because USSSA could demonstrate through other means that DeDonatis possessed the devices, used the devices, knows the information needed to access the devices, and knows the types of ESI on the devices.[1] Id. 143:6–11. The Court therefore determined that the foregone conclusion doctrine applied and that granting the motion as to the laptop and one iPhone would not violate the Fifth Amendment. Id.
In granting the motion, the Court provided three ways in which DeDonatis could comply. Hr. Tr. 144:23–148:19; see also Dkt. 136. He could (1) answer the interrogatories, (2) provide the necessary information to USSSA's eDiscovery vendor, or (3) provide the necessary information to another eDiscovery vendor. Hr. Tr. 144:23–148:19; see also Dkt. 136. The Court provided three alternative means to comply to accommodate the “purely formal” line drawn by the Supreme Court between the act of production and oral testimony for custodians of corporate records, see Grand Jury Subpoena Dated Apr. 9, 1996 v. Smith, 87 F.3d 1198, 1202 (11th Cir. 1996) (explaining that, in Braswell v. United States, 487 U.S. 99 (1988), and Curcio v. United States, 354 U.S. 118 (1957), the Supreme Court drew a line between oral testimony and all other forms of incrimination with respect to subpoenas directed to custodians of a corporation's records), and DeDonatis’ apparent unwillingness return the ESI in his possession to USSSA. The Court also set deadlines that DeDonatis must meet to comply with the Order. See Dkt. 136.
The parties subsequently filed notices showing that their dispute is still ongoing, and that they have not complied with the Court's order. On Friday, February 9, DeDonatis notified the Court that he complied with the Court's order by providing testimony about the information needed to access the laptop. Dkt. 139 at 1. Having provided such testimony freely, voluntarily, knowingly, and with the advice of counsel, DeDonatis has therefore waived any objection he may have had to testifying about the information needed to collect, preserve, and produce all of the ESI[2] on the laptop.[3] With regard to his iPhone, DeDonatis informed the Court that he intended to comply using the third option, cooperating with an independent eDiscovery vendor. Dkt. 139 at 2.
Then, on Tuesday, February 13, USSSA notified the Court that the parties could not agree on an acceptable vendor by the deadline. Dkt. 141 at 1. Based on the email exchange provided in that filing and an additional (unauthorized) notice filed by DeDonatis, it appears that the single vendor proposed by DeDonatis lacks the experience or technical expertise that USSSA believes is necessary and that the vendors proposed by USSSA do not satisfy the Court's requirement that the vendor not have a prior or current relationship with any of the parties or counsel. Dkts. 141-1, 142.
*3 In view of the parties’ impasse, the Court finds good cause to amend its prior order. The order is amended only to remove the requirement that the independent eDiscovery vendor have no prior or current relationships with the parties or their counsel. The Court also finds good cause to direct the parties to use a particular vendor. The parties shall use one of the following vendors:
1. iDiscovery Solutions, Inc., 3000 K Street, N.W., Suite 330, Washington, D.C. 2007, Telephone: (800) 813-4832, email: info@idsinc.com;
2. Alethean Group, 172 Woodhull Rd, Huntington, New York, 11743, Telephone: (347) 480-9913; email: contact@aletheangroup.com; and
3. Mulholland Investigation, 221 East Adams Street, Jacksonville, Florida 32202, Telephone: (877) 354-7989, email: mammon@mulhollandinvestigation.com;
If any of the vendors can provide the services needed and is willing to perform the work, then the parties shall use that vendor, with all costs borne by DeDonatis.
It is so ordered.
DONE and ORDERED in Orlando, Florida, on February 15, 2024.

Footnotes

The Court denied the motion as to the iPhone used by DeDonatis’ spouse because he testified that he did not know the information needed to access the device. Hr. Tr. 144:7–11.
The Court has addressed this issue three separate times. The Court's holding and DeDonatis’ choice of the third option obligates DeDonatis and his counsel to fully cooperate in a timely manner to provide all of the information necessary to access all of the ESI contained on the cell phone. Failure to fully and timely provide this information may result in sanctions against DeDonatis, his counsel, or both.
In his notice, DeDonatis states that the Court “inadvertently lumped together the laptop and Mr. DeDonatis’ cell phone.” Dkt. 139 at 1–2. To be clear, the inclusion of the laptop was not inadvertent. USSSA moved for an order directing DeDonatis to provide the information needed to access the data on the laptop, and the Court's order requires him to do so. The Court need not take a position on the scope of DeDonatis’ waiver of his Fifth Amendment rights given its prior findings and ruling.