Fiddler's Creek, LLC v. Naples Lending Group LC

Filing 223

ORDER denying as moot 162 Plaintiff's Renewed Motion to Compel Validated Images of Defendants' ESI Systems due to the parties' stipulated agreement regarding production of mirror images of Defendants' ESI Systems. Signed by Magistrate Judge Carol Mirando on 2/11/2016. (ANW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
IN RE: FIDDLER’S CREEK, LLC
FIDDLER’S CREEK, LLC,
Plaintiff,
v.

Case No: 2:14-cv-379-FtM-29CM

NAPLES LENDING GROUP LC
and DANIEL CARTER,
Defendants/Third
Party Plaintiff
v.
AUBREY FERRAO, ANTHONY
DINARDO and WILLIAM
REAGAN,
Third Party Defendants.
______________________________________/
STIPULATED ORDER REGARDING PRODUCTION
OF MIRROR IMAGES OF DEFENDANTS’ ESI SYSTEMS
THIS CASE came before the Court on the agreement reached by Defendants
Daniel Carter and Naples Lending Group, LC (“Defendants”) and Fiddler’s Creek,
LLC (“Plaintiff”) concerning the production of mirror images (the “Images”) of
Defendant Naples Lending Group, LC’s electronically stored information (“ESI”)
systems (“NLG’s Systems”). On January 15, 2016, Defendants provided Plaintiff with
an expert report concerning the contents of the NLG’s Systems (the “Huron Report”)
which report was authored by Defendants’ expert, Huron Legal (“Huron”). Plaintiff

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has also retained a consultant, Capsicum Group (“Capsicum”), to analyze the Images
of NLG’s Systems and to prepare its own report. On January 21, 2016, this Court
held a hearing, at which the parties agreed that any rebuttal expert witness report(s)
to the Huron Report would be produced within thirty (30) days of receipt of the
Images.

Since then, the parties have reached further agreement governing the

production of the Images requested by Plaintiff, which agreement is detailed below.
ACCORDINGLY,
It is ORDERED and ADJUDGED as follows:
1.

Plaintiff’s Renewed Motion to Compel Validated Images of Defendants’

ESI Systems, filed on October 30, 2015 (Doc. 162) is hereby DENIED as moot due to
the parties agreement set forth herein.
2.

Any expert witness report(s) related to the Images or NLG’s Systems

shall be due within thirty (30) days of receipt of the Images by Capsicum, without
prejudice to Plaintiff to seek additional time, by agreement with Defendants or Order
of this Court, if necessitated by the technical process set forth below.
3.

This Order shall be binding upon Plaintiff, Defendants and their

respective ESI experts, Huron and Capsicum.
4.

The following constitutes the process governing the production of the

Images as agreed upon by the parties:
A. Capsicum is authorized to examine Defendants’ hard drives, devices,
servers, and/or systems (collectively, the “Devices”), solely as set
forth in this Order and Exhibits in order to prepare a rebuttal to the
Huron Report (the “Rebuttal Report”) and to search as set forth
herein for information regarding the veracity of the following
averments made by Defendants in Defendant, Daniel Carter’s

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Motion for Separate Trial and Incorporated Memorandum of Law
(the “Relevant Information”) [Adv. Pro. 8:11-ap-00522-KRM, DE
143]:
i.

Naples Lending’s servers and computers do not reflect that
any of the materials that DiNardo contends were contained on
the CD-ROM were, in fact, ever viewed or uploaded into the
system at any time prior to the bankruptcy proceeding [Adv.
Pro. 8:11-ap-00522-KRM, DE 143, p. 12.]

ii.

Naples Lending’s servers and computers reflect that
materials, if any, that DiNardo contends were contained on
the CD-ROM were, in fact, received by Naples Lending in the
ordinary course of the bankruptcy proceedings from Fiddler’s
Creek or from third parties [Adv. Pro. 8:11-ap-00522-KRM,
DE 143, FN 7.]

B. Defendants have represented that the inventory (“Inventory”)
provided to Plaintiff, a copy of which is attached hereto as Exhibit 1,
includes all Devices which did contain (though Defendants deny that
it did) or could have contained the data, files or resulting information
for which Plaintiff is searching.
Defendants have further
represented that its own consulting expert, Huron, has already made
images (collectively, the “Images”) of all of the Devices on the
Inventory and that those Images contain validated hash values.
C. Within the next seven (7) days, Defendants shall make the Images
available to Capsicum together with a list of MD-5 Hash codes for
each of the original Devices in order to complete the following tasks
in search for the Relevant Information:
i.
ii.
iii.
iv.

Take custody of the Images;
Import the Images into a forensic software tool such as Encase
or other files and data forensic analysis software required
depending on the content and condition of the data itself;
Confirm the validation of the hash values;
Export any files and data which is restored from the Images
using forensic software tool, Encase or other tool and data
forensic analysis software agreed upon by Defendants 1 or by

In the event Capsicum believes alternative software tools are necessary to complete the
tasks identified in Section C (iv-viii), above, Capsicum shall advise Plaintiff’s counsel of the
same who will, in turn, advise counsel for Defendants and seek Defendants’ agreement.
Defendants shall provide their response to Plaintiff’s counsel, in writing, within forty-eight
(48) hours of Plaintiff’s advisement and request for agreement. In the event Defendants’ do
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v.

vi.

vii.

viii.

further Order of the Court depending on the content and
condition of the data itself;
Index the exported files and data for searching using software
tool such as dtSearch or other tool and data forensic analysis
software agreed upon by Defendants or by further Order of the
Court depending on the content and condition of the data
itself;
Populate the search software tool (dtSearch or other tool and
data forensic analysis software agreed upon by Defendants or
by further Order of the Court depending on the content and
condition of the data itself) with the provided file names and
MD5 hash values using the search criteria attached hereto as
Exhibit 2;
Search for exported/indexed files and data contained within
allocated and unallocated space, addressed by systems files
and logs or contained elsewhere within the media, with the
search software tool dtSearch or other tool and data forensic
analysis software agreed upon by Defendants or by further
Order of the Court depending on as a result of the content and
condition of the data itself; and
Generate a report (“Search Report”) using software tool
dtSearch, or other tool and data forensic analysis software
agreed upon by Defendants or by further Order of the Court
depending on the content and condition of the data itself, of
all “hits” and distribute as set forth below.

D. Capsicum shall create and maintain a log containing the names of
all individuals who access the Images. Such log shall also specifically
note the date, as well as start and conclusion times, within which
such persons accessed, viewed, processed or in any manner utilized
the Images.
E. The Parties agree that, within five (5) business days of the generation
of the Search Report set forth above, Capsicum will provide directly
to Defendants’ counsel, and not to Plaintiff’s counsel, the Search
Report together with any and all files, data, and resulting
information found in the Devices containing the Relevant
Information, if any, in a format to be provided by Defendants with
the Images allowing for upload into Relativity, where applicable, for
review to determine: (1) any files, data and resulting information
not agree to the use of alternative software deemed necessary by Capsicum, the parties agree
to promptly seek judicial resolution by contacting Judge Mirando’s Chambers as suggested
during the parties’ January 21, 2016 discovery hearing. The parties agree that time is of the
essence for a resolution of any disagreement as to the use of alternative software tools.
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believed to be protected by an applicable privilege; (2) any files, data,
and resulting information believed to be protected by the work
product doctrine; or (3) any files, data and resulting information
believed to contain personally identifiable information related to
Defendants or third parties or other confidentiality concerns which
Defendants assert justify withholding of the files, including that such
files are or contain Defendants’ proprietary materials, data, and
resulting information which contain privileged information or work
product would be redacted or withheld from production, as
necessary. For those files, data, and resulting information redacted
and/or withheld on the basis of privilege and/or work product
doctrine, Defendants’ counsel must provide a privilege log to
Plaintiff’s counsel identifying: (1) the type of files, data and resulting
information for which the privilege or work product doctrine is
claimed; (2) the basis for withholding such file, data or resulting
information; and (3) the date that the file, data, and resulting
information was prepared, sent or shared (the “Privilege
Log”).
Files, data, and resulting information which contain
personally identifiable or Defendants’ propriety information would
be redacted. Defendants’ counsel shall also provide a redaction log
identifying the purpose for any and all redactions of files, data, and
resulting information containing personally identifiable information
or other confidentiality concerns which Defendants assert justify
withholding of the files (the “Confidentiality Log").
F. Within ten (10) business days after this process is completed,
Defendants’ counsel should produce to Plaintiff’s counsel: (1) all
files, data, and resulting information from the sampling and search
of the Devices, except those which have been withheld and (2) the
Privilege Log and Confidentiality Log. The documents produced by
Defendants’ counsel to Plaintiff’s counsel shall be in a single page
TIFF format along with document level OCR text files, native files
and the following fields in a load file: (1) custodian (name of
custodian from which the file, data, and resulting information is
being produced); (2) bates begin (beginning production number); (3)
bates end (ending production number); (4) page count; (5) all
available meta data; and (6) OCR text file. Defendants may exclude
from collection, review, and production files, data, and resulting
information with file extensions that typically contain no meaningful
user-created data and/or cannot be reviewed in any meaningful
format. Specifically, Defendants may exclude (1) files with the
following extensions (provided that the file signature matches the
extension): .COM, .EXE, .BAT, .DLL, .SYS, .VXD, .BIN, .ASH, .ASM,
.B, .BAS, .BCP, .C, .CPP, .H, .C++, .CPL, .FRM, .MOD, .RH, .VB,

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.VBX, .XLV, .RC and (2) those file types contained in the list
established by the National Institute of Standards in Technology
(“NIST”) entitled “Permitted Excluded Files.” To the extent that
Defendants wish to exclude data and file types not included within
this list from processing, the parties must agree to the same in
writing.
G. Capsicum will not send, show, share or discuss with Plaintiff the
substance of any files, data, and resulting information resulting from
digital forensics examination described which were produced to
Defendants’ counsel unless the same are either (a) produced to
Plaintiff as set forth above or (b) ordered to be provided to Plaintiff
over Defendants’ objection. Except with respect to the content
described in the immediately preceding sentence that is not the
subject of subsection (a) or (b) of this paragraph and for which
Capsicum shall neither send, show, share or discuss with Plaintiff,
Capsicum is and shall be permitted to discuss with Plaintiff and its
counsel any observations, conclusions, mental impressions, opinions,
or results reached, developed or derived from the digital forensics
examination described above which relates to the substance or
content of, or errors or discrepancies in, the Huron Report or is
otherwise related to or required for the issuance of the Rebuttal
Report.
H. All files, data, and other resulting information marked by
Defendants’ counsel as “confidential”, but not withheld on such basis
or another basis, which are produced pursuant to the digital forensics
examination described above shall be held by Plaintiff’s counsel as
confidential pursuant to the Agreed Protective Order and Stipulation
Regarding Confidential and Privileged Information entered earlier
in this lawsuit at 8:11-ap-00522, Doc. No. 141, and should be used for
this case only.
I. After this case has concluded by award, settlement, or otherwise,
Plaintiff shall destroy or return any files, data, and resulting
information containing confidential information produced, and
Capsicum will return, destroy or delete the Images as requested by
Defendants, unless otherwise ordered by the Court. Further,
Capsicum and Plaintiff shall save all case files and communications
between each other regarding this matter until this case has
concluded by award, settlement or otherwise, and destroy the same
upon such occurrence, unless otherwise ordered by the Court.

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J. Only Capsicum shall have access to the Images; unless authorized by
further Order of this Court, neither Plaintiff, Plaintiff’s attorneys,
nor any other party shall have access to the Images. Beyond the
agreed-upon digital forensics examination described above or as
otherwise ordered by the Court, Capsicum is not authorized to in any
way to access, peruse, search, or analyze the Images.
K. To avoid undue risk of accidental review or disclosure of attorney
client communications, Capsicum shall exclude email extensions of
Defendants’ law firms, a list of which will be provided by Defendants
upon delivery of the Images.
L. Within the Search Report, the Rebuttal Report and upon destruction
of the images, Capsicum shall certify under penalty of perjury that it
has fully complied with the terms of this Order.
M. Each Image is a copy of its respective Device in its entirety and, as
such, Defendants maintain that the same contain sensitive and
confidential information related to Defendants’ and other entities
business operations, including ESI wholly unrelated to this case,
along with privileged documents, all of which requires the utmost
diligence and protection in handling. As a result of the significant
risks from Defendants sharing the foregoing information, they
explicitly reserve the right to seek actual damages, sanctions, and
punitive damages in the event of a violation of this Order.
DONE and ORDERED in Fort Myers, Florida on this 11th day of February,
2016.

Copies furnished to:
Counsel of Record

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