In a recent decision in Carolina Bedding Direct, LLC v. Downen, United States Magistrate Judge for the Middle District of Florida Monte C. Richardson shed light on the limitations placed on discovery by Federal Rule of Civil Procedure 26 and the circumstances under which a requesting party will be denied wholesale access to a responding party’s computer, cell phone, and email account. Moreover, the decision also illustrates that courts may be unwilling to question a responding party’s certification of compliance with discovery requests absent a real showing of improper conduct, even if it is shown that the responding party failed to produce its own email and text messages that were later produced by another party.
Carolina brought suit seeking to permanently enjoin Downen from breaching the non-compete, non-solicitation, and confidentiality provisions of a contract. In response, Downen acknowledged that he was in competition with Carolina, but denied the existence of a valid non-compete agreement. During discovery, Carolina sought inspection of “(i) any computers, hard drives, and/or electronic devices used by [Downen] at any time between August 1, 2012, and present; and (ii) all email addresses and log-in information to all email accounts used by [Downen] at any time between August 1, 2012 and present.” The Court denied Carolina’s first emergency motion to compel Downen’s compliance with this request. In a renewed emergency motion to compel, Carolina narrowed its request for inspection to include only: “(i) [Downen]’s computer; (ii) [Downen]’s two cell phones (the non-smart phone he used until approximately November 2012 and the iPhone he began using in approximately November 2012); and ([iii]) the log-in information for the email accounts associated with the email addresses email@example.com and firstname.lastname@example.org.”
The Court began its analysis by acknowledging the limits Federal Rule of Civil Procedure 26(b)(2)(C) imposes on the scope of discovery— specifically, the frequently cited provision that discovery will be limited where “the burden or expense of the proposed discovery outweighs its likely benefit.” The Court also acknowledged that while Rule 34 permits a party to request the inspection and copying of documents or electronically stored information (ESI), the Rule “does not grant unrestricted access to a respondent’s database compilations.” However, according to the Court, inspection may be justified “to check the data compilation,” if there is “improper conduct on the part of the responding party.” Importantly, the Court noted that “to gain direct access to the respondent’s databases, the Court must make a factual finding of some non-compliance with discovery rules and protect respondent with respect to preservation of his records, confidentiality of non-discoverable matters and costs.”
In this case, Downen certified that he had “fully responded” with all of Carolina’s discovery requests, and the Court found “no reason to doubt [Downen]’s assertions.” In a footnote, the Court observed that “[t]he fact that another person still has an email or text that [Downen] had not produced[,] does not automatically mean that it remains on [Downen]’s computer and/or telephone.” In addition, the Court noted that because Downen admitted that he was in competition with Carolina, Carolina’s efforts to prove that fact “serve[d] no significant benefit.” The Court also found that “allowing [Carolina] to have wholesale access to [Downen]’s e-mail accounts and telephone is not consistent with the limited discovery allowed in advance of the hearing on the motion for preliminary injunction.” Thus, the Court denied Carolina’s emergency motion to compel production, and ordered each party to pay its own costs because it found that Carolina’s motion was at least “substantially justified.”
Although brief, Magistrate Judge Richardson’s opinion addresses many important issues that arise in the course of e-discovery practice. Rule 26 places important limitations on the scope of discovery, and wholesale direct access to the source of the responding party’s ESI will only be granted if the Court finds non-compliance with the discovery rules. In addition, some courts will not question a responding party’s assertion of compliance with discovery requests, even if it fails to produce data that is proven to have once been in its possession.