Measured Wealth Private Client Group, LLC v. Foster et al

Filing 176

ORDER granting 154 Plaintiff's Motion to Compel Forensic Examination. Signed by Magistrate Judge William Matthewman on 3/31/2021. See attached document for full details. (kza)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Civil No.: 20-cv-80148-SINGHAL/MATTHEWMAN
MEASURED WEALTH PRIVATE
CLIENT GROUP, LLC, a New
Hampshire limited liability company,
Plaintiff,

KJZ

vs.

Mar 31, 2021

LEE ANNE FOSTER, an individual, et al.,
Defendants.
__________________________________/

West Palm Beach

ORDER GRANTING PLAINTIFF’S MOTION
TO COMPEL FORENSIC EXAMINATION [DE 154]
THIS CAUSE is before the Court upon Plaintiff, Measured Wealth Private Client Group,
LLC’s (“Plaintiff”) Motion to Compel Forensic Examination of Defendant Lee Anne Foster’s
Mobile Phone (“Motion”) [DE 154 1 ]. The Motion was referred to the undersigned by the
Honorable Raag Singhal, United States District Judge. See DE 34. Defendant, Lee Anne Foster
(“Defendant”), has filed a response [DE 156], and Plaintiff has filed a reply [DE 162 2]. The Court
held a hearing on the Motion via Zoom video teleconference on March 16, 2021 and took the
Motion under advisement. The Court also entered an Interim Order [DE 172] requiring the parties
to further confer and file a Joint Notice. The Joint Notice filed on March 24, 2021 [DE 173] states
that the parties were unable to reach any agreement. This Order now follows.

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The sealed exhibits to the Motion are at DE 155.
The sealed exhibits to the reply are at DE 163.

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The discovery issue currently pending before the Court is whether Plaintiff should be
permitted to conduct a forensic examination of Defendant Lee Anne Foster’s mobile phone to
recover certain text messages and iMessages from the period of January 1, 2019 through December
31, 2019. In response, Defendant asserts that the temporal scope is too broad and would result in
the production of irrelevant text messages and iMessages, that the discovery sought could be
obtained from other individuals, and that Plaintiff’s request for a forensic examination of her
mobile phone for such a long time period is a mere fishing expedition. Defendant is concerned that
the examination could uncover personal and private information unrelated to Plaintiff’s claims.
The Court has carefully considered the relevant law, Plaintiff’s Motion [DE 154],
Defendant’s response [DE 156], Plaintiff’s reply [DE 162], the sealed materials filed by Plaintiff
[DEs 155, 163], and the arguments of counsel for both parties at the hearing, as well the entire
docket in this case. The Court makes the following findings.
First, despite Defendant’s argument to the contrary, Plaintiff has properly propounded
written discovery requests seeking certain text messages and iMessages from the time period of
January 1, 2019 through December 31, 2019. 3 Additionally, the Court provided the parties with
the opportunity to confer about the most recent requests for production propounded by Plaintiff
and waited until the responses to the most recent requests for production were due before issuing
this Order.
Second, text messages and iMessages responsive to Plaintiff’s discovery requests from the

This is a different situation from when the Court ordered a forensic examination of Defendant Richard Kesner’s cell
phone because Plaintiff had not propounded discovery requests upon him outside of the April-July 2019 time period.
Or, if Plaintiff had served discovery requests seeking text messages and iMessages for all of 2019, Plaintiff’s counsel
failed to make that argument at the discovery hearing.

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period of January 1, 2019 through December 31, 2019, are relevant and proportional to the claims
and defenses in this case, per Fed.R.Civ.P. 26(b)(1).
Third, Defendant currently possesses the same phone she possessed and utilized back in
2019 during the relevant time period. The Court wants to put an end to this discovery dispute and
finds that a forensic examination, with necessary safeguards to protect Defendant’s privacy, is the
best way to accomplish that task.
Fourth, Defendant appears to have been obstructionist with regard to her production of text
messages and iMessages during the discovery process. Based on the facts and arguments presented
to the Court, it seems that Defendant agreed to produce certain text messages and iMessages at
one time and then failed to do so. At this point, she has produced none of the text messages or
iMessages sought by Plaintiff. The Court wants to ensure that all relevant and proportional
discovery is produced in this case. All parties and their counsel in this case, including Defendant,
must ensure that all relevant and proportional e-discovery sought has been appropriately preserved,
searched for, and produced. Serious sanctions can issue if e-discovery preservation, search, or
production is inadequate. See, e.g., DR Distributors, LLC, No. 12 CV 50324, 2021 WL 185082, at
*2 (N.D. Ill. Jan. 19, 2021).
Fifth, in light of the sealed filings, the Court finds that Plaintiff is not engaging in an
improper fishing expedition in seeking the text messages and iMessages. Rather, Plaintiff has made
a legitimate discovery request based on the production that Defendant has completed to date.
The Court wants to ensure complete production of all relevant requested documents in this
case while concomitantly protecting Defendant’s privacy as to the personal matters on her phone.
Because Plaintiff has made a strong showing that additional relevant text messages and iMessages
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may be recovered from Defendant’s phone, forensic examination is appropriate in this case. See
Barton & Assocs., Inc. v. Liska, No. 9:19-CV-81023, 2020 WL 8299750, at *1 (S.D. Fla. May 11,
2020) (finding that, because a defendant had failed to produce copies of any text messages during
the non-compete period and had failed to preserve his phone, a forensic examination was
warranted); Health Mgmt. Assocs., Inc. v. Salyer, No. 14-14337-CIV, 2015 WL 12778793, at *1
(S.D. Fla. Aug. 19, 2015) (finding that the plaintiff had made a sufficient demonstration of need
for forensic examination when the devices at issue were likely to contain information relevant to
the litigation and the defendant had failed to cooperate in discovery); Wynmoor Cmty. Council,
Inc. v. QBE Ins. Corp., 280 F.R.D. 681, 687 (S.D. Fla. 2012) (finding a forensic examination to be
warranted when the plaintiffs were either unwilling or unable to conduct a search of their computer
systems for documents responsive to the defendant’s discovery requests). Plaintiff has made a
sufficient showing of need for the messages. 4 Further, the Court is concerned that Defendant’s
search of her phone was inadequate. The Court will utilize the protocols from the Wynmoor case,
modified as necessary, in order to ensure protection of Defendant’s privacy.
Based on the foregoing, it is hereby ORDERED as follows:
1. Plaintiff’s Motion to Compel Forensic Examination [DE 154] is GRANTED.
2. Defendant shall submit the cellular phone that she used during the period between
January 1, 2019 and December 31, 2019, for an independent forensic examination
subject to the protocols described herein.

The Court rejects Defendant’s argument that Plaintiff can obtain the text messages and iMessages at issue from
other individuals. Defendant is a party in this case and former Measured Wealth clients are not. Moreover, it is much
more efficient for Plaintiff to conduct a forensic examination than to subpoena multiple non-parties.

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3. An independent expert shall be appointed by the Court and shall mirror image and/or
acquire all data present on Defendant’s cell phone (to the extent it is possible, the
independent expert shall conduct his or her examination in a manner that minimizes the
disruption to Defendant).
4. The parties shall meet and confer regarding their designation of an independent forensic
computer expert within seven (7) calendar days of the entry of this Order. The parties
shall promptly notify the Court if they agree on an expert. If the parties cannot agree
on the selection of an expert, each party shall submit its recommendation to the Court,
and the Court will select the expert.
5. The appointed expert shall serve as an Officer of the Court. Thus, to the extent that this
computer expert has direct or indirect access to information protected by attorney-client
privilege, such disclosure will not result in any waiver of any party’s attorney-client
privilege.
6. The independent expert shall sign a confidential undertaking statement pursuant to the
Court’s Agreed Confidentiality and Protective Order [DE 51]. Additionally, the expert
shall be allowed to hire other outside support, if necessary, in order to mirror image or
acquire all data on Defendant’s cell phone. Any outside support shall also be required
to sign a confidential undertaking statement.
7. The expert shall mirror image Defendant’s cell phone. If it is not feasible to create a
mirror image of Defendant’s cell phone data because of device security measures, the
expert shall acquire as much data as possible from the device to allow the expert to
recover text messages and iMessages.
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8. The parties are to confer within ten (10) days of the date of this Order in an attempt to
agree on search terms. If the parties cannot agree, each party shall submit its
recommendation to the Court, and the Court will select the search terms. The Court
will only determine search terms as a last resort since the parties have more detailed
knowledge of the case. The parties’ counsel should confer with the expert to the extent
possible to arrive at reasonable and necessary search terms. This should be a
collaborative effort among counsel and the expert with the goal being able to locate
and produce all relevant text messages and iMessages from Defendant’s phone during
the time period at issue. The search terms should not be so broad as to elicit “junk”
discovery and should not be so narrow as to exclude relevant discovery. The parties
will provide the search terms ultimately agreed upon or ordered by the Court to the
independent expert. The goal here is to only elicit text messages and iMessages from
Defendant’s cell phone which are relevant to the claims and defenses in this case. The
Court expects and requires the parties and their counsel to confer and cooperate in this
procedure.
9. Once the expert has mirror imaged or otherwise acquired the data from Defendant’s
cell phone, the expert shall search the mirror image or acquired data using the search
terms. The results of the search terms and an electronic copy of all responsive
documents shall be provided to Defendant’s counsel.
10. Defendant’s counsel shall review the search results provided by the independent expert
and identify all documents to which she objects to disclosing to Plaintiff. Defendant
shall produce all non-privileged responsive documents to Plaintiff and identify those
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responsive documents not produced on a privilege log to the Plaintiff within ten (10)
days of the date that Defendant receives the search results from the independent expert.
Any privilege log produced shall comply strictly with the Local Rules for the Southern
District of Florida. If Defendant is in doubt whether or not a certain message should be
produced, she can seek leave to submit it to the Court for in camera review.
11. Plaintiff shall pay for all fees and costs of hiring the independent expert at this time.
However, the Court will determine at a later date whether costs and expenses should
be apportioned or otherwise paid by Defendant. For example, if the data recovered from
Defendant’s phones contains data or documents responsive to Plaintiff’s prior requests
for production which Defendant reasonably could have provided in the regular course
of discovery without a forensic examination, the Court will revisit this issue of costs
and consider charging Defendant for the fees and costs of the independent expert or
imposing the fees and costs on the parties in a duly appropriate and apportioned
manner.
12. The independent expert shall provide a signed affidavit detailing the steps he or she
took to mirror image or acquire data from Defendant’s phone and search the data for
the search terms within five (5) days of providing Defendant with the results of the
search for search terms.
13. The Court reserves jurisdiction to review in camera any documents that are subject to
dispute between the parties.
14. From the date of this Order through the completion of the search, Defendant is required
to maintain the phone at issue and shall not delete any texts or iMessages.
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DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, in the
Southern District of Florida, this 31st day of March, 2021.

WILLIAM MATTHEWMAN
United States Magistrate Judge

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