Bray & Gillespie Mgmt., LLC v. Lexington Ins. Co., 2010 WL 55595 (M.D. Fla. Jan. 5, 2010)
Following court findings that “[Bray & Gillespie], through counsel, acted willfully and in bad faith in violation of the Federal Rules of Civil Procedure and this court’s orders” by failing to make reasonable efforts to search for and produce documents in response to court orders and by making repeated misrepresentations to the court, among other things, the Magistrate Judge recommended that the plaintiff’s claims be stricken and that the case be dismissed with prejudice. (For additional details of plaintiff’s discovery abuses, see Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D. Fla. Mar. 4, 2009) for a prior opinion in this case.)

On review of that recommendation, the District Court Judge found total dismissal of all the plaintiff’s claims “an excessive remedy” and instead ordered the dismissal of all claims for damages arising from the alleged interruption of business at the Treasure Island Property and for the plaintiff to pay $75,000 to the defendant for expenses incurred in pursuit of its motion for sanctions.

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D. Fla. Mar. 4, 2009)
This case is one of the best examples of how ESI can go awry very quicky in a case. An insurance dispute arose following damage to Bray & Gillespie’s (“B&G”) resort properties from Hurricanes Charley, Frances, and Jeanne. B&G was represented by Anderson, Kill & Olick, P.C. (“AKO”) in connection with the submission of insurance claims for the damage. B&G, with the assistance of AKO, gathered documents, including electronically stored information (“ESI”) to support those claims. Relevant ESI was downloaded in its native format, scanned, and loaded to a hard drive (“Target Hard Drive”). The ESI was then converted to TIFF images using a program called Extractiva, which also captured the metadata from the ESI. Those images and metadata were then uploaded into the Introspect database and the Target Hard Drive was put in storage. AKO provided copies of the information to Lexington, in paper form and on discs, in support of B&G’s insurance claims.

Coverage could not be agreed upon, and on February 13, 2007, B&G filed suit. In August and September, 2007, Lexington served requests for production on B&G, specifically requesting production of ESI in native format with metadata intact. B&G did not object to the request for production in native format. On May 27, 2008, Lexington filed its motion for sanctions arguing that B&G had violated Rule 34 and seeking an order compelling production in native format and sanctions.

Turning to its analysis, the court noted that Rule 34 “permits a party requesting production of documents to specify the form or forms in which the electronically stored information is to be produced” but that a responding party may object to the form of production and state the form it intends to use. Because Lexington specified the form of production in its request and because B&G failed to timely object, the court held that B&G had violated Rule 34. The court also held that B&G had violated its April 11, 2008 order by failing to produce the ESI in the specified form. Having determined that B&G violated its discovery obligations, the court then considered sanctions. B&G was ordered to provide Lexington with a copy of its Introspect database, except for privileged information, and was ordered to bear all costs related to the production, including the purchase of any necessary software for Lexington’s use and the hiring of any professionals to copy the database. Lexington was allowed to choose the form of production, i.e., a copy of the database, remote access, etc. To ensure B&G’s full compliance, B&G was ordered to allow a Lexington-designated expert to access the database to ensure that everything contained therein was produced. As an “attorney advising” B&G regarding discovery, the court found Ellison personally liable for Rule 37 sanctions.

Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 (N.D. Fla. Aug. 29, 2008)
In this breach of employment agreement and misappropriation of trade secrets case, plaintiff moved to compel production of emails from defendant's personal Yahoo! account. Plaintiff contended that it only recently learned of the account, and that defendant should have disclosed the account in response to an earlier discovery request. Plaintiff argued that emails from the account contained highly relevant information crucial to the issues in the case.

Although defendant claimed he could not produce the emails because they had been destroyed by Yahoo!, he offered only a copy of a generic response from Yahoo! about deactivating accounts. The court observed that Yahoo! may have a process for obtaining emails from deactivated accounts, and declined to accept defendant's explanation that production was "impossible," particularly given the important evidentiary value of the emails and the "feeble offering" by defendant in support of the contention.

U & I Corp. v. Advanced Med. Design, Inc., 2007 WL 4181900 (M.D. Fla. Nov. 26, 2007)
In this breach of contract case, plaintiff sought a protective order blocking the production of documents by a non-party in response to defendant's subpoena. The court found that plaintiff had not established good cause for the protective order, in part because the time frame of the requests was reasonable. The court also noted that, because plaintiff's 2004 emails were allegedly unavailable, defendant had no other way to obtain some of the information. The court thus denied the motion for protective order; it also denied the non-party's motion to quash, which was based on general relevancy and undue burden arguments. In this breach of contract case, plaintiff sought a protective order blocking the production of documents by a non-party in response to defendant's subpoena. The court found that plaintiff had not established good cause for the protective order, in part because the time frame of the requests was reasonable. The court also noted that, because plaintiff's 2004 emails were allegedly unavailable, defendant had no other way to obtain some of the information. The court thus denied the motion for protective order; it also denied the non-party's motion to quash, which was based on general relevancy and undue burden arguments.

At the same time, defendant sought an order compelling plaintiff to produce the hard drives of certain employees for inspection by an independent expert, and to produce all responsive 2004 emails. Defendant also sought various sanctions for plaintiff's alleged failure to produce the material in accordance with the court's prior order on the subject.

Coleman v. Morgan Stanley
Plaintiff's motion for adverse interference instruction was granted due to destruction of emails and non-compliance with previous court orders.

Menke v. Broward County Sch. Bd., 916 So.2d 8 (Fla. Ct. App. 2005).
Alleging a teacher exchanged sexually explicit e-mails with students and made derogatory comments about school staff, a school board sought to compel production of all computers in the teacher's household. Additionally, the Board sought to have its own computer expert search the computers in the expert's laboratory for the alleged messages between the teacher and students. Objecting to the order, the teacher declared the production would violate his right against self-incrimination, his right of privacy, and would disclose privileged communications. An administrative law judge ordered production of the computers and sought to protect the teacher's right by allowing the teacher to have his own expert present at the inspection and by requiring the Board's expert "not to retain, provide, or discuss with counsel for the Board the existence of any communications which might be deemed privileged." In quashing the order, the court declared it was overbroad and would allow, "an agent of the Board carte blanche authorization to examine the hard drives it will duplicate from the computers [the teacher] has been ordered to produce. Combing through every byte, every word, every sentence, every data fragment, and every document, including those that are privileged or that may be part of privileged communications, looking for 'any data' that may evidence communication between [the teacher] and his accusers."

Four Seasons Hotel v. Consorcio Barr
Case involved theft of proprietary computer information where in computer forensics played a role in determining the theft.

Southern Diagnostic Assoc. v. Bencosme, 833 So. 2d 801 (Fla. Dist. Ct. App. 2002).
The appellate court quashed an order against Southern Diagnostic, a non-party in an insurance suit brought by Bencosme, compelling discovery of certain contents of its computer system. The appellate court held that that trial court's order was overly broad, setting no parameters or limitations on the inspection of Southern Diagnostic's computer system and make no account that the computer system contained confidential and privileged information. The appellate court directed the trial court to craft a narrowly tailored order that accomplishes the purposes of the discovery requests and provides for confidentiality.