Garrett v. University of South Florida Board of Trustees

Filing 57

ORDER granting in part and denying in part 49 motion to compel. Signed by Magistrate Judge Amanda Arnold Sansone on 9/14/2018. (DMP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SAMANTHA L. GARRETT,
Plaintiff,
v.

Case No. 8:17-cv-2874-T-23AAS

UNIVERSITY OF SOUTH FLORIDA
BOARD OF TRUSTEES,
Defendant.
_______________________________________/
ORDER
The University of South Florida Board of Trustees (USF Board) moves to
compel forensic examinations of Ms. Garrett’s personal computer and cellphone.
(Doc. 49). The USF Board also moves to re-open Ms. Garrett’s deposition. (Id.). And
the USF Board moves for an award of attorney’s fees and costs related to this
discovery dispute against Ms. Garrett. (Id.). Ms. Garrett opposes the USF Board’s
motion. (Doc. 54).
The USF Board’s requests for forensic examination of Ms. Garrett’s personal
computer and cellphone are disproportional to the needs of this case . But due to the
recording Ms. Garrett’s counsel recently produced to the USF Board and Ms.
Garrett’s failure to provide text messages responsive to a discovery request, the USF
Board may re-open its deposition of Ms. Garrett. Therefore, the USF Board’s motion
to compel is GRANTED-IN-PART and DENIED-IN-PART.
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I.

BACKGROUND
Ms. Garrett (a USF student) sued the USF Board under Title IX of the

Education Amendments of 1972, 20 U.S.C. Section 1681. (Doc. 1). Ms. Garrett alleges
she suffered from a hostile educational environment due to the USF Board’s actions
and the USF Board retaliated against her in violation of Title IX. (Id.).1
Ms. Garrett’s claims against the USF Board originate from an incident in
which she claims Andrew Thurston (a fellow USF student) sexually battered and
raped her. (Id. at 3). According to Ms. Garrett, USF violated Title IX in its response
to her assault, and that violation resulted in a hostile educational environment. (Id.
at 4–18).
Ms. Garrett also claims the USF Board violated Title IX when it retaliated
against her. (Id. at 37–40). Ms. Garrett alleges USF charged her for violating the
Student Code of Conduct in retaliation for Ms. Garrett’s complaints about USF’s Title
IX violations after her assault. (Id. at 18–21). USF’s alleged retaliation originates
from a conversation between Ms. Garrett, Megan Deremiah, and Crystal Coombes.2
(Id. at 18).

Ms. Garrett recorded her conversation with Ms. Deremiah and Ms.

Coombes, and USF charged Ms. Garrett for violating Section 90.5035, Florida
Statutes, which prohibits illegal recordings. (Id.).

Ms. Garrett included three counts in her complaint against the USF Board. (Doc. 1). Two
counts remain after the order on the USF Board’s motion to dismiss. (Doc. 35).
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Ms. Deremiah and Ms. Coombes are USF employees involved in USF’s investigation of Ms.
Garrett’s assault allegations. (Doc. 42-1, pp. 2–4).
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On the discovery deadline, the USF Board moved to compel forensic
examinations of Ms. Garrett’s personal computer and cellphone. (Doc. 49). The USF
Board also moved to re-open Ms. Garret’s deposition and requested attorney’s fees
and costs associated with this discovery dispute. Ms. Garrett then submitted her
response. (Doc. 54).
II.

ANALYSIS
A party may obtain discovery about any nonprivileged matter relevant to any

party’s claim or defense and proportional to the needs of the case. Fed. R. Civ. P.
26(b)(1). Whether requested discovery is proportional partly depends on whether the
burden or expense of the proposed discovery outweighs its likely benefit. Id.
Discovery is meant to assist parties in ascertaining facts that bear on issues in
the case. ACLU of Fla., Inc. v. City of Sarasota, 859 F.3d 1337, 1340 (11th Cir. 2017)
(citations omitted). That said, discovery may not impose undue burden and the scope
is limited by Rule 26(b)(2). Bank of Magnolia v. M&P Global Financial Serv., 258
F.R.D. 514, 518 (S.D. Fla. Apr. 24, 2009).
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 determining whether to permit forensic examinations into
electronic devices, including computers and cellphones, courts consider the privacy
interest of the party whose devices are to be examined. Bradfield v. Mid-Continent
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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-CV417-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). With respect to
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 cost.” Middle District Discovery 2015 at VII(E). Mere speculation that
electronic discovery must exist is insufficient to permit forensic examination of a
party’s personal computer or cellphone. Klayman v. City Pages, No. 5:13-CV-143-Oc22PRL, 2014 WL 5426515, at *4 (M.D. Fla. Oct. 22, 2014).
In its motion to compel, the USF Board requests the following: forensic
examinations of Ms. Garrett’s personal computer and cellphone at Ms. Garrett’s
expense; Ms. Garrett’s copies of text messages between her and Mr. Thurston; reopening Ms. Garrett’s deposition; and attorney’s fees and costs incurred due to reopening Ms. Garrett’s deposition and bringing its motion to compel. (Doc. 49). The
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court will address the USF Board’s requests in turn.
A.

Forensic Examination of Ms. Garrett’s Personal Computer and
Cellphone for Information Related to Belatedly Produced
Recording

The USF Board moves for forensic examinations of Ms. Garrett’s personal
computer and cellphone. (Doc. 49, pp. 4–8). According to the USF Board, forensic
examinations of Ms. Garrett’s computer and cellphone are necessary due to
discrepancies in Ms. Garrett’s depositions about the recording of her meeting with
Ms. Coombes and Ms. Deremiah. (Id.). At her first deposition, Ms. Garrett testified
she deleted the recording. (Doc. 49-3, p. 3). At her continued deposition, however,
Ms. Garrett testified she did not destroy the recording and the recording was “still in
[her] computer.” (Doc. 49-6, p. 3).
After Ms. Garrett’s continued deposition, the parties’ counsel conferred about
the recording Ms. Garrett previously claimed she deleted. (Doc. 49, p. 6). Counsel
also corresponded via email about the recording. (Id.). On the date of the discovery
deadline, Ms. Garrett’s counsel produced an amended response to the USF Board’s
request for production, which requested the following:
Copies of any personal notes, recordings, photographs, videotapes,
diaries, journals, calendars, chronology, or any other written documents
that reflect your conversations with any current or former employee of
Defendant regarding your complaints about the University, the events
or allegations recited in the Complaint, or your alleged injuries or
damages claimed in this action.
(Docs. 49, p. 4; 49-2, p. 8; 49-9). Ms. Garrett’s amended response stated: “See the
attached recording – ‘Title IX.’” (Doc. 49-9, p. 2). Ms. Garrett’s counsel also produced
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the recording with her amended response. (Doc. 49, p. 6).
The USF Board argues the recording shows Ms. Garrett’s transcription of the
recording, a copy of which Ms. Garrett previously gave to Ms. Deremiah, is not “an
accurate portrayal” of the recording. (Doc. 49, p. 6). The USF Board argues Ms.
Garrett’s transcription omits exchanges relevant to claims in this case. (Id. at 6–7).
Due to inconsistencies in Ms. Garrett’s testimony and the claimed inaccurate
transcription, the USF Board requests “forensic examination of [Ms. Garrett’s]
computer and the cellular telephone used to make this recording in order to
determine the authenticity of this recording, when it was created, when it was
opened, whether it was modified, and when it was saved or accessed on the computer
and telephone.” (Id. at 7).
Ms. Garrett asserts, consistent with her testimony at her first deposition, she
deleted the recording shortly after she created it. (Doc. 54, p. 2). She claims she later
discovered she could recover the deleted recording from her iTunes account on her
computer and then provided it to her attorney. (Id.). Although Ms. Garrett’s counsel
received the recording “in preparation for the filing of this lawsuit,” her counsel failed
to produce the recording because “it was not being relied upon.” (Id. at 2–3). Ms.
Garrett’s counsel acknowledges the recording is responsive to the USF Board’s
request for production but claims failure to produce the recording “was completely
inadvertent and was not discovered until USF’s counsel pointed out [at Ms. Garrett’s]
August 30th deposition testimony.” (Id. at 3). Ms. Garrett’s counsel produced the
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recording to the USF Board’s counsel the next day. (Doc. 54, p. 3).
Ms. Garrett’s counsel’s production of the recording on the discovery deadline is
inexcusable considering the relevance of the recording to Ms. Garrett’s retaliation
claim against the USF Board. That said, the USF Board’s request for forensic
examinations of Ms. Garrett’s personal computer and cellphone is disproportional to
both the needs of this case in general and the resolution of this discovery dispute
specifically. The USF Board now has the recording.
Courts in this circuit permit forensic examinations where clear evidence exists
that the party responding to discovery defaulted on its discovery obligations. ANZ
Advanced Tech., LLC v. Bush Hog, LLC, No. 09-00228-KD-N, 2010 WL 11575131, at
*9 (S.D. Ala. May 4, 2010) (permitting forensic examination when party clearly failed
to produce relevant documents); Wynmoor Cmty. Council, Inc. v. QBE Ins. Corp., 280
F.R.D. 681, 686 (S.D. Fla. Mar. 5, 2012) (permitting forensic examination when party
“undertook no efforts” to produce electronic discovery); Bank of Mongolia, 258 F.R.D.
at 517 (permitting forensic examination when party failed to produce all responsive
documents without valid excuse). Although at the latest possible time, Ms. Garrett ’s
counsel produced the recording before the discovery deadline passed.
Additionally, the USF Board has not shown the requisite exceptional
circumstances necessary for forensic examinations of Ms. Garrett’s personal
computer and cellphone. For example, the USF Board failed to provide any facts or
information suggesting Ms. Garrett altered or tampered with the recording or her
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personal computer. Conclusory assertions or “bare possibility of misconduct” are
insufficient to outweigh an individual’s privacy interest. ANZ Advanced Tech., 2010
WL 11575131, at *9; Klayman, 2014 WL 5426515, at *5; Valdes, 2018 WL 4281472,
at *6. The USF Board instead requests forensic examinations of Ms. Garrett’s
personal computer and cellphone to determine the recording’s authenticity; creation
date; possible modifications; and when it was opened, saved, or accessed. (Doc. 49, p.
7). These topics can be addressed through the re-opening of Ms. Garrett’s deposition
and do not warrant forensic examination in the face of Ms. Garrett’s privacy interest
in the contents of her personal computer and cellphone. Although discrepancies may
exist between Ms. Garrett’s transcription and the recording, the USF Board can also
explore this issue at her re-opened deposition.
Ms. Garrett’s privacy interest in her personal computer and cellphone
outweighs any benefit of the USF Board’s requested forensic examinations.
Therefore, the USF Board’s motion for forensic examinations of her computer and
cellphone is disproportional to the needs of this case and is denied.
B.

Forensic Examination of Ms. Garrett’s Cellphone for Text
Messages Between Ms. Garrett and Mr. Thurston

The USF Board also moves for forensic examination of Ms. Garrett’s cellphone
“to obtain a full copy of all text messages between her and Mr. Thurston” as well as
details about the timing of the text messages and their authenticity. (Doc. 49, pp.
10–11). The USF Board points out, in its requests for production, the USF Board
requested copies of all text messages, and documents related to text messages, from
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Ms. Garrett about her claims. (Doc. 49, p. 8). According to the USF Board, Ms.
Garrett failed to provide all text messages between her and Andrew Thurston, despite
including Mr. Thurston in her Rule 26 disclosures. (Id.).
The USF Board asserts, during USF’s investigation into Ms. Garrett’s assault,
Mr. Thurston provided 1,438 text messages between him and Ms. Garrett. (Id. at 9).
In a request for admission to Ms. Garrett, Ms. Garrett contested the accuracy of the
text messages Mr. Thurston provided. (Doc. 49-12, pp. 3–4). Ms. Garrett stated:
“Many entries [from Mr. Thurston’s text messages] are accurate, but many are
known, questioned, or believed to Plaintiff to be inaccurate.” (Id. at 3). The USF
Board further points out Ms. Garrett contested the accuracy of Mr. Thurston’s text
messages at her deposition when she stated the issue with Mr. Thurston’s text
messages “is with who sent and who received.” (Docs. 49, pp. 9–10; 49-13, p. 3).
The USF Board also points out Ms. Garrett testified she has “the full copy of
all the text messages” between her and Mr. Thurston. (Docs. 49, pp. 9–10; 49-13, p.
3).

According to the USF Board, however, Ms. Garrett only provided 337 text

messages between her and Mr. Thurston. (Doc. 49, p. 10). So, the USF Board
concludes Ms. Garrett defaulted in her discovery obligations because she only
produced 337 text messages compared to the 1,438 Mr. Thurston provided—despite
her claim she has full copies of all text messages they exchanged. (Id.). The USF
Board also claims Ms. Garrett produced text messages containing information
inconsistent with those Mr. Thurston provided and other deficiencies. (Id.).
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Due to Ms. Garrett’s failure to produce all text messages and claimed
deficiencies in the 337 text messages she produced, the USF Board requests “forensic
examination of her cellular telephone in order to obtain a full copy of all the text
messages between her and Mr. Thurston in her possession, custody, or control and to
establish the authenticity of these messages, when they were sent or received, who
sent or received them, when they were accessed, and whether they have been
modified.” (Doc. 49, p. 11).
Ms. Garrett claims she produced all text messages “that support or contradict
the allegations in the Complaint, relate to [Ms. Garrett’s] complaints about the
University . . . or relate to the filing of this lawsuit” consistent with the USF Board’s
request for production. (Docs. 54, p. 4; 49-1, p. 8). Therefore, Ms. Garrett argues she
complied with her discovery obligation. (Doc. 54, p. 4). With respect to the USF
Board’s request for forensic examination of her cellphone, Ms. Garrett argues the
USF Board failed to demonstrate the need for forensic examination because Mr.
Thurston provided all the text messages. (Id. at 5).
Ms. Garrett failed to produce discovery responsive to the USF Board’s request
for production. In its sixth request for production, the USF Board requested the
following:
The documents reflecting or relating to communications or
correspondence with any of the individuals identified in your
disclosures made pursuant to Rule 26(a) or with individuals
identified in response to Defendant’s First Set of Interrogatories,
including, but not limited to, any witness statements, affidavits,
declarations, letters, e-mail, voice, or text messages, postings, or other
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statements made by any individual with knowledge of your claims or the
facts underlying those claims.
(Doc. 49-1, p. 5) (emphasis added). Ms. Garrett included Mr. Thurston in her Rule 26
disclosures. (Doc. 42-1, p. 2). Therefore, text messages between her and Mr. Thurston
are responsive to the USF Board’s sixth request for production.
Although the USF Board’s request for production may otherwise be broad, Ms.
Garrett placed the accuracy of text messages Mr. Thurston provided at issue in her
response to the USF Board’s request for production and at her deposition. Because
Ms. Garrett contests the accuracy of the text messages Mr. Thurston provided, she
must produce her copies of all text messages she and Mr. Thurston exchanged, which
she testified she possesses.
The USF Board, however, failed to establish that the discovery benefits of a
forensic examination of Ms. Garrett’s cellphone outweigh her privacy interest.
Although the USF Board found deficiencies in 337 text messages Ms. Garrett
produced, like missing dates and times, Ms. Garrett’s production of the text messages
between her and Mr. Thurston should settle the USF Board’s questions. The USF
Board can also ask Ms. Garrett at her re-opened deposition about any inconsistencies
between the text messages she must produce and text messages Mr. Thurston
produced.

Therefore, the USF Board’s motion for forensic examination of Ms.

Garrett’s cellphone is denied.
C.

Limited Re-opening of Ms. Garrett’s Deposition

The USF Board moves to re-open Ms. Garrett’s deposition to ask about her
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recently produced recording and the text messages. (Doc. 49, pp. 11–12). Ms. Garrett
consents to the USF Board re-opening her deposition to ask about the recently
produced recording. (Doc. 54, p. 5). When a responding party delays in producing
discovery, the court may re-open depositions—at the responding party’s expense—for
the requesting party to inquire about information learned from new discovery.
Preferred Care Partners Holding Corp. v. Humana, Inc., No. 08-20424-CIV, 2009 WL
982460, at *10 (S.D. Fla. Apr. 9, 2009).

Due to her delay in producing the recording

and her failure to produce text messages responsive to the USF Board’s discovery
request, the USF Board may re-open Ms. Garrett’s deposition for the limited purpose
of asking about the recording, including inconsistencies between the recording and
Ms. Garrett’s transcription of her meeting with Ms. Coombes and Ms. Deremiah, and
any discrepancies between the text messages she must produce and the text messages
Mr. Thurston already produced. Ms. Garrett will bear the reasonable costs of this
limited re-opened deposition, including reasonable attorney’s fees.
D.

Attorney’s Fees

The USF Board requests attorney’s fees incurred due to submitting its motion
to compel. (Doc. 49, pp. 11–12). Ms. Garrett opposes the USF Board’s request for
attorney’s fees. (Doc. 54, p. 7).
If a motion to compel is granted in part and denied in part, the court “may,
after giving opportunity to be heard, apportion the reasonable expenses for the

12

motion.” Fed. R. Civ. P. 37(a)(5)(C).3 The reasonable expenses the moving party may
receive depends on how successful the motion to compel was overall. See Cal Dive
Int’l, Inc. v. M/V Txmin (Ex Stena Seahorse), 127 F.R.D. 213, 218 (S.D. Ala. Aug. 18,
1989) (apportioning expenses based on the moving party succeeding on 70% of
requests in its motions to compel).
Ms. Garrett’s counsel possessed the recording—central to Ms. Garrett’s
retaliation claim against the USF Board—during the entirety of the discovery period
but failed to produce the recording to the USF Board until the last day of discovery.
Ms. Garrett also testified she possessed all her text messages with Mr. Thurston but
failed to produce them, despite the USF Board’s discovery request and despite Ms.
Garrett contesting the accuracy of Mr. Thurston’s production of the text messages.
Due to these actions by Ms. Garrett and her counsel, it is appropriate to apportion to
Ms. Garrett part of the USF Board’s reasonable attorney’s fees incurred for preparing
its motion to compel.
In its motion to compel, the USF Board requested the following: (1) forensic
examinations of Ms. Garrett’s personal computer and cellphone for information
related to the recording; (2) forensic examination of Ms. Garrett’s cellphone for text
messages between her and Mr. Thurston; (3) text messages between her and Mr.
Thurston; (4) and re-opening Ms. Garrett’s deposition. (Doc. 49).

Ms. Garrett had the opportunity to respond to the USF Board’s request for attorney’s fees.
(Doc. 54).
3

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The USF Board failed on its two separate requests for forensic examinations.
The USF Board prevailed on its request for text messages because its request for
production requested all Ms. Garrett’s text messages with Mr. Thurston. The USF
Board also prevailed on its request to re-open Ms. Garrett’s deposition. Altogether,
the USF Board prevailed on 50% of its requests. Therefore, the USF Board is entitled
to 50% of the reasonable attorney’s fees incurred in submitting its motion.
III.

CONCLUSION
The USF Board failed to show benefits to forensic examinations of Ms.

Garrett’s personal computer and cellphone outweigh Ms. Garrett’s privacy interests.
Ms. Garrett, however, failed to disclose text messages responsive to the USF Board’s
discovery request and she waited until the discovery deadline date to produce the
recording—central to her retaliation claim against the USF Board—to the USF
Board’s counsel.

Therefore, the USF Board’s motion to compel (Doc. 49) is

GRANTED-IN-PART and DENIED-IN-PART as follows:
1.

The USF Board’s request for forensic examinations of Ms. Garrett’s
personal computer and cellphone with respect to issues concerning the
recording of her meeting with Ms. Coombes and Ms. Deremiah is
DENIED.

2.

The USF Board’s request for forensic examination of Ms. Garrett’s
cellphone with respect to issues concerning text messages between her
and Mr. Thurston is DENIED.
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3.

The USF Board’s motion to compel Ms. Garrett to produce text messages
responsive to its sixth request for production is GRANTED and Ms.
Garrett must produce the text messages she and Mr. Thurston
exchanged.

4.

The USF Board’s request to re-open Ms. Garrett’s deposition is
GRANTED. The USF Board may ask about the recording Ms. Garrett
produced on the discovery deadline and any discrepancies between the
text messages she must produce and those Mr. Thurston already
produced.

Ms. Garrett bears the reasonable costs of this limited

deposition, including attorney’s fees.
5.

By September 28, 2018, the parties must confer in good faith to
stipulate to reasonable attorney’s fees the USF Board incurred in
submitting its motion to compel.

6.

If the parties fail to stipulate to the USF Board’s reasonable attorney’s
fees, then, by October 5, 2018, the USF Board may submit a motion for
reasonable attorney’s fees and expenses, including affidavits and
supporting materials that support the total amount sought.

7.

In all other respects, the USF Board’s motion to compel is DENIED.

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ORDERED in Tampa, Florida, on September 14, 2018.

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