Builders Insulation of Tennessee, LLC v. Southern Energy Solutions et al

Filing 118

ORDER granting in part 89 Motion to Compel and Sua Sponte Amending the Court's Oral Order Requiring Defendants to Produce a Mirror Image of the "All-In-One" Computer. Signed by Magistrate Judge Tu M. Pham on 05/01/2019. (jmd)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
BUILDERS INSULATION OF
TENNESSEE, LLC,

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Plaintiff
v.
SOUTHERN ENERGY SOLUTIONS,
A Tennessee General
Partnership; THOMAS WALKER
DAVIS, a/k/a Thom Davis;
and TERI LEIGH DAVIS, a/k/a
Teri Davis,
Defendants.

No. 17-cv-02668-TLP-tmp

ORDER GRANTING IN PART PLAINTIFF’S MOTION TO COMPEL AND SUA
SPONTE AMENDING THE COURT’S ORAL ORDER REQUIRING DEFENDANTS TO
PRODUCE A MIRROR IMAGE OF THE “ALL-IN-ONE” COMPUTER

Before

the

court

by

order

of

reference

is

plaintiff

Builders Insulation of Tennessee, LLC’s (“Builders”) Motion to
Compel Production of Documents.
Southern

Energy

Solutions,

(ECF Nos. 89; 102.)
Thom

Davis,

Defendants

and

Teri

(collectively “SES”) have responded in opposition.
93.)

At

represented

the
that

hearing
only

held

one

on

issue

May

1,

remained

2019,
in

Davis

(ECF No.

the

relation

parties
to

the

present motion, which was SES’s failure to produce certain bank
records (however, emails and other documents at issue in the
Motion to Compel are still at issue in relation to the Motion
for Sanctions).

Specifically, Builders has requested that SES

produce

account

records

for

SES’s

Independent

Bank

ending in #6560, from September 2015 to August 2017.
No. 39-1 at 5.)
SES

requested

account,
(See ECF

SES indicated that, after the motion was filed,
the

bank

records

from

its

bank.

The

bank

subsequently informed SES that it could provide the records by
early May.

SES further stated that it would produce those bank

records upon receipt.

The court hereby orders SES to produce

the bank records by May 15, 2019.
is

GRANTED

to

the

extent

it

Accordingly, Builders’ motion

seeks

production

of

the

bank

records.
At

the

hearing,

Builders

also

requested

(for

the

first

time) that SES be required to produce a mirror image of an AllIn-One computer, which is apparently in SES’s possession.

The

court orally granted that request; however, upon further review,
the court finds the mirror image request to be premature.
Sixth Circuit has stated:
To be sure, forensic imaging is not uncommon in the
course of civil discovery. A party may choose on its
own to preserve information through forensic imaging,
and
district
courts
have,
for
various
reasons,
compelled the forensic imaging and production of
opposing parties' computers. Nevertheless, “[c]ourts
have been cautious in requiring the mirror imaging of
computers where the request is extremely broad in
nature and the connection between the computers and
the claims in the lawsuit are unduly vague or
unsubstantiated in nature.” As the Tenth Circuit has
noted,
albeit
in
an
unpublished
opinion,
mere
skepticism that an opposing party has not produced all
relevant information is not sufficient to warrant
drastic electronic discovery measures. And the Sedona
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The

Principles urge general caution with
forensic imaging in civil discovery:

respect

to

Civil litigation should not be approached as if
information systems were crime scenes that justify
forensic investigation at every opportunity to
identify and preserve every detail. . . . [M]aking
forensic image backups of computers is only the
first step of an expensive, complex, and difficult
process
of
data
analysis
that
can
divert
litigation into side issues and satellite disputes
involving
the
interpretation
of
potentially
ambiguous forensic evidence.
Thus, even if acceptable as a means to preserve
electronic evidence, compelled forensic imaging is not
appropriate in all cases, and courts must consider the
significant interests implicated by forensic imaging
before ordering such procedures. . . . (“Courts should
guard against undue intrusiveness resulting from
inspecting
or
testing
[electronic
information]
systems.”).
John B. v. Goetz, 531 F.3d 448, 459-460 (6th Cir. 2008)(internal
citations

omitted)

(emphasis

added);

see

also

FCA

US

LLC

v.

Bullock, 329 F.R.D. 563, 567-68 (E.D. Mich. 2019) (“Courts have
cautioned

that

examination
suspicion

of

that

they

are

‘loathe

an

opponent's

the

opponent

to

computer
may

be

sanction
.

.

.

withholding

on

intrusive
the

mere

discoverable

information.’” (quoting Diepenhorst v. City of Battle Creek, No.
05-734, 2006 WL 1851243, at *3 (W.D. Mich. June 30, 2006))).
Accordingly, the court sua sponte amends its oral order and will
not yet require SES to mirror image its All-In-One computer.
However, the court emphasizes that SES is under a continuing
duty to preserve any relevant evidence that may exist on that
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computer.

In addition, counsel for SES shall ensure that the

All-In-One

computer

is

searched

and

all

relevant

information

contained therein produced by May 15, 2019.
Finally, Builders has also requested attorney’s fees for
preparing and litigating the instant motion.

The court hereby

DENIES that request; however, the court may impose sanctions
including awarding attorney’s fees when it rules on the related
Motion for Sanctions (ECF No. 76), which has also been referred
to the undersigned.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
May 1, 2019
Date

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