The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HEALTHPLAN SERVICES, INC.,
Plaintiff,
v. Case No.: 8:18-cv-2608-T-23AAS
RAKESH DIXIT, FERON
KUTSOMARKOS, E-INTEGRATE,
INC., KNOWMENTUM, INC., and
MEDIA SHARK PRODUCTIONS,
INC.,
Defendants.
______________________________________/
ORDER
HealthPlan Services, Inc. seeks sanctions and fees against Rakesh Dixit,
Media Shark Productions, Inc., and Knowmentum, Inc. (collectively, the Dixit
defendants) and an order to show cause why the Dixit defendants should not be held
in contempt. (Doc. 218). HealthPlan asks the court to: (i) order the immediate hand-
over of Feron Kutsomarkos’s laptop and associated hard drives to HealthPlan’s
designated expert for a full forensic inspection; (ii) order the Dixit defendants and
their attorneys to show cause why they should not be held in contempt; (iii) instruct
the jury at trial that the Dixit defendants have engaged in bad faith litigation
misconduct by violating this court’s prior order; and (iv) find the Dixit defendants’
litigation misconduct to support a fee award at the end of this case. (Doc. 218, p. 3).
Besides HealthPlan’s motion for sanctions, the court construes these requests as a
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motion for the Dixit defendants to comply with this court’s order at Doc. 200. The
Dixit defendants oppose this motion. (Doc. 229).
At the October 16 hearing, this court granted HealthPlan’s oral motion to
compel immediate inspection of Ms. Kutsomarkos’s laptop in Mr. Rakesh Dixit’s
possession. (Doc. 200. ¶ 6). The court required Mr. Dixit to turn over the hard drives
from Ms. Kutsomarkos’s laptop to his attorneys by Saturday October 19. (Id. at ¶
6.b). Mr. Dixit complied, and Mr. Dixit’s counsel has the hard drives. (Doc. 201). The
court required HealthPlan to comply with the parties’ protective order for the
selection of the expert. (Doc. 200, ¶ 6.g). HealthPlan identified an expert and gave
the Dixit defendants ten days to object as required by the protective order. (Doc. 218,
p. 2). Counsel for the Dixit defendants responded by saying “we object to your expert
designation in relation to the hard drive matter address in the Order at Doc. 200.”
(Doc. 218-2).
HealthPlan argues the Dixit defendants must comply with the court’s October
16 order (Doc. 200) directing inspection of the hard drives once HealthPlan followed
the protocol from the protective order (Doc. 104) for selecting a suitable expert for the
laptop examination (Doc. 218, p. 4). HealthPlan asserts it complied with the
protective order by disclosing the expert to the Dixit defendants and gave the Dixit
defendants ten calendar days to disclose their written objections to the expert. (Id.
at p. 5). HealthPlan argues the Dixit defendants waived any objections to the laptop
inspection. (Id. at pp. 5–6). HealthPlan asserts the Dixit defendants did not provide
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good cause for objecting to HealthPlan’s selected expert. (Doc. 218-2). HealthPlan
speculates the Dixit defendants’ refusal to turn over the hard drive to the expert may
be an attempt to cover up spoliation by the Dixit defendants. (Doc. 218, p. 10).
In response, the Dixit defendants argue HealthPlan’s comments at the
October 16 hearing suggested the drives were only to be forensically imaged. (Doc.
229, p. 2). The Dixit defendants also argue a different legal standard exists for
permitting a forensic examination of the hard drives rather than permitting a mere
image and cite Garrett v. University of South Florida Board of Trustees, No. 8:17-cv-
2874-T-23AAS, 2018 WL 4383054 (M.D. Fla. Sept. 14, 2018).
First, at the October 16 hearing, the court asked if HealthPlan wanted to do
an “actual forensic search of the laptop.” (Doc. 203, p. 79). HealthPlan responded:
Very simple. We have somebody forensically image the laptop and that’s
it. They get to keep the laptop. All we’re doing is creating a forensic
image so that we can evaluate the documents that were produced and
ensure that they’re properly preserved and that we’ve received the
entirety of the documents that we’ve requested.
(Id. at p. 82). HealthPlan explained why the forensic imaging and subsequent search
and review were necessary at the October 16 hearing. (Id. at pp. 78–82).
The Dixit defendants’ reliance on Garrett for the legal standard is misplaced.
In Garrett, the plaintiff produced the recording sought by the defendant, but the
defendant requested a forensic examination to see if there was evidence of an attempt
to tamper with the recording. 2018 WL 4383054, at *4. Here, counsel for Ms.
Kutsomarkos noted Ms. Kutsomarkos provided pdf versions of documents from the
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laptop. (Doc. 203, p.79). However, the pdf files scrubbed the metadata from the
documents and that metadata should be available on the hard drives. (Id. at p. 80).
Also, the computer in Garrett was a personal computer, but here the computer was
Ms. Kutsomarkos’s business computer and she gave it to Mr. Dixit, her employer.
Discovery into electronically stored information, including forensic
examinations, is subject to the scope of discovery under Rule 26(b). Fed. R. Civ. P.
34(a); U&I Corp. v. Advanced Medical Design, Inc., 251 F.R.D. 667, 672 (M.D. Fla.
Mar. 26, 2008). When deciding whether to permit forensic examinations of electronic
devices, courts consider the privacy interest of the party whose devices are to be
examined. Bradfield v. Mid-Continent Cas. Co., No. 5:13-CV-222-Oc-10PRL, 2014
WL 4626864, at *4 (M.D. Fla. Sept. 15, 2014) (citations omitted); Valdes v. Greater
Naples Fire Rescue Dist., No. 2:17-CV-417-FtM-29CM, 2018 WL 4281472, at *6 (M.D.
Fla. Sept. 7, 2018). Courts also consider whether the party (whose devices are to be
examined) withheld requested discovery; whether the party cannot or will not search
for requested discovery; and to extent to which the party complied with past discovery
requests. Bradfield, 2014 WL 5626864, at *4 (citation omitted).
The Middle District of Florida Discovery Handbook also outlines the limits of
electronic discovery. Middle District Discovery (2015) at VII(C). As for forensic
examinations, the Handbook states: “Inspection of an opponent’s computer system is
the exception, not the rule and the creation of forensic image backups of computers
should only be sought in exceptional circumstances which warrant the burden and
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cost.” Middle District Discovery 2015 at VII(E).
Since Ms. Kutsomarkos did not correctly comply with prior discovery requests
by producing from the laptop incorrectly formatted documents with limited
information, the court determined a forensic examination of the laptop was
warranted. (Doc. 203, p. 88). Ms. Kutsomarkos also conducted her own search of the
emails rather than having an expert or her attorney conduct the search. (Id. at p.
80). Also, Mr. Dixit, another defendant, searched and recovered the same files Ms.
Kutsomarkos produced in the native format. (Id. at p. 79). HealthPlan also conveyed
certain documents that should have come from a professional search of the laptop
were missing. (Id. at p. 81). These factors satisfy exceptional circumstances to
warrant a forensic examination. Noting, the cost and burden for the forensic
examination is falling on HealthPlan, who wants to confirm everything was turned
over to them. (Id. at p. 85).
Thus, it is ORDERED:
(1) HealthPlan’s motion for the Dixit defendants to comply with this court’s
order (Doc. 218) is GRANTED.
(2) HealthPlan’s motion for fees, sanctions, a jury instruction, and order to
show cause why the Dixit defendants should not be held in contempt of
court order (Doc. 218) are GRANTED to the extent that the Dixit
defendants must pay HealthPlan’s reasonable expenses incurred for the
meet and confers with the Dixit defendants about this issue and filing
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its motion. The Dixit defendants’ failure to comply with the October
2019 order at Doc. 200 was not substantially justified and other
circumstances do not make an award of expenses against the Dixit
defendants unjust. See Fed. R. Civ. P. 37(b)(2)(C). HealthPlan’s
requests for additional sanctions, a jury instruction, and an order to
show cause are DENIED WITHOUT PREJUDICE pending the
forensic examination of the laptop. The following timeline must be met:
a. HealthPlan and the Dixit defendants are to meet and confer
to discuss HealthPlan’s reasonable expenses by Friday
January 3, 2020.
b. If the parties cannot agree to reasonable expenses, then
HealthPlan’s motion for reasonable expenses must be filed
with support from affidavits and fee records by Friday
January 10, 2020.
c. The Dixit defendants’ response is due by Friday January 24,
2020.
(3) Mr. Deese, lead counsel for the Dixit defendants, must turn over the
hard drives to counsel for HealthPlan by 5 pm on Monday December
23, 2019.
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ORDERED in Tampa, Florida on December 19, 2019.
Aranda. Arpre (he Sasson,
AMANDA ARNOLD SANSONE
United States Magistrate Judge