UHLIG LLC, et. al. Plaintiffs, v. JOHN ADAM SHIRLEY, et. al., Defendants No. 6:08-cv-01208-JMC United States District Court, D. South Carolina, Greenville Division July 13, 2011 Counsel Frank H. Gibbes, III, Gibbes Burton, Spartanburg, SC, Juliet A. Cox, Larry David Fields, Kutak Rock, Kansas City, MO, for Plaintiffs. Denny Parker Major, H. Sam Mabry, III, Joshua L. Howard, William Francis Marion, Jr., Denny Parker Major, Haynsworth Sinkler Boyd, Greenville, SC, for Defendants. Childs, Julianna M., United States District Judge OPINION AND ORDER *1 This matter is before the court on Plaintiff Uhlig LLC's Motion to Modify Protocol for Conducting Examination of Defendants' Computers [681]. For the reasons given in this order, Plaintiff's motion is granted. This order will not be made available to the public; it will be restricted to case participants only. FACTUAL BACKGROUND This instant matter concerning the breadth and scope of examination of Defendants' computers and other things has been a constant issue of contention between the parties since the inception of this litigation. On August 5, 2008, the court issued a Preliminary Injunction Order (“Order”) [Doc. 89] in this case on the terms outlined in the two separate Reports and Recommendations (“Reports”) [Docs. 51 and 71] issued by the Magistrate Judge. Among other things, the Order provided, as incorporated from the Reports: Defendant Shirley shall permit examination and imaging of all computers and any other things, including without limitation all Blackberrys or other devices, capable of storing information, documents, or data electronically, utilized or accessed by defendant Shirley or any other person acting on his behalf, including but not limited to Amanda Dorsey, Todd Baldree, LeGette Shirley, Jennifer Clark, Jeremy Richardson, and Nathan Holman, at any time since December 1, 2007, by a third party to verify that no additional documents or materials generated by Cox CustomMedia are in his possession. The parameters of this third party qualified computer forensics expert review is beyond the scope of this order and will be separately negotiated by the parties contemporaneous with this happening. Shortly thereafter, Plaintiff brought a Motion to Compel [Doc. 112] Defendants' compliance with the court's Order concerning the examination and imaging of the computers and electronic devices. After unsuccessfully urging the parties to pursue a resolution without court intervention, the Magistrate Judge expanded on the court's prior Order by providing more detailed instructions to guide the parties' compliance with the Order and facilitate future discovery. [Doc. 234]. Specifically, the Magistrate Judge found that Defendant Shirley had provided Plaintiff with all personal computers and all other computers and/or other electronic storage devices in his possession, custody, or control, which have been used by or on behalf of him or by or on behalf of Eventelope LLC (“Eventelope”) and/or Prism Content Solutions, LLC (“Prism”), at any time from December 1, 2007, for imaging by Frank Beal. Based on the disputes between the parties as to the completeness of Shirley's production, the Magistrate Judge ordered Defendant Shirley to provide Plaintiff with a list of all computers and/or electronic storage devices that have been used by or on behalf of Defendant Shirley, Eventelope, and/or Prism at any time from December 1, 2007, and ordered Shirley to provide explanations as to the dates of use and the item's current or last known location. The Magistrate Judge further ordered the parties to complete certain actions regarding the compilation of relevant search terms and the conduct of the search based on the limited information provided by the parties concerning the quantity and quality of documents contained on the computers and electronic devices. Finally, the Magistrate Judge found that the parties should share equally in all costs and fees charged by Beal in performing his obligations as ordered. *2 Still thereafter, the parties continued to dispute the breadth and scope of the electronic documents search. On February 19, 2009, Plaintiff filed another Motion to Compel [273] requesting the court to order Defendants to allow Beal to conduct the search of the electronic documents using the terms provided by Plaintiff. Defendants opposed such motion and filed their own Motion for Protective Order [Doc. 275] on the basis that Plaintiff's proposed search terms were vague and overly-broad and would result in a compilation of documents too numerous for efficient and timely review. The Magistrate Judge held a telephone conference on the matters raised by the parties' motions and requested the parties to submit an agreement concerning the procedure for electronic discovery. The parties were unable to reach an agreement within the specified time. Therefore, the Magistrate Judge held a subsequent telephone conference on April 23, 2009, to address the matter. At that time, the Magistrate Judge imposed the following procedure for electronic discovery: Initially, only the computers of Mr. Shirley and Ms. Dorsey will be searched. The searches are limited to creation dates between January 1, 2008, and June 1, 2008, and the burden is on the plaintiff to narrow the “Priority Search Terms” to 15 search terms and the document names to be searched to 700. If the parties can agree on a reasonable procedure for electronic discovery, they may submit such agreement to the court and the foregoing procedure will be so amended. After the foregoing discovery is completed, the court will reconvene a hearing as to further discovery. [Doc. 310]. In April 2010, the parties and their forensic experts met in Charleston, South Carolina to formulate and agree upon a computer search protocol. This agreement, memorialized as the Charleston Protocol, should have allowed discovery to proceed smoothly and efficiently. However, the parties continued to disagree on the appropriate scope of the searches conducted on the various electronic devices imaged by Beal. The Magistrate Judge again intervened in January 2011 to resolve a dispute concerning the search of Ms. Dorsey's computer and, at that time, allowed the search in accordance with the search terms provided by Defendants, but also required Defendants to bear the cost of the search. [Doc. 534]. Since the parties' agreement on the Charleston Protocol, the forensic experts have conducted various searches of the electronic devices. However, another dispute arose concerning the manner in which each parties' expert conducted their respective searches. After consultation, the parties were unable to resolve the dispute and Plaintiff filed the motion now before the court seeking modification of the computer examination protocol and imposition of sanctions on March 7, 2011. DISCUSSION A. Modification of the Protocol Although the parties participated in the development of and agreed upon the Charleston Protocol, they are now before this court unable to amicably implement it and Plaintiff seeks the court's clarification and/or modification of the agreement. The court maintains its view that these issues should have been worked out between the parties who are far more familiar with the technicalities of the protocol than the court. However, given the parties' repeated failure to resolve the issues concerning electronic discovery—particularly in light of the court's previous guidance on the matter—the court will intervene once again in an attempt to move this case to final resolution. *3 In prior orders on the issue of electronic discovery, the court has made painstaking efforts to walk the line between allowing Plaintiffs to do the discovery necessary to prosecute its case and maintaining reasonable guidelines that would not overly burden Defendants. Those orders were made on the basis of limited technical and factual information. The parties have since conducted extensive factual discovery and Plaintiff has presented the court with additional evidentiary support for Plaintiff's allegations related to Defendants' transmission of documents.[1] The court believes that Plaintiff has demonstrated that a broader scope of electronic discovery is warranted. See Fed.R.Civ.P. 26(b) (1) (allowing “discovery regarding any non-privileged matter that is relevant to any party's claim or defenseincluding the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons who know of any discoverable matters”). For this reason, the court lifts the date limitations previously imposed by the Magistrate Judge. The court also believes that the use of hash values eliminates the need for search term limitations. Accordingly, the court modifies the protocol as follows: 1. Plaintiff's expert shall search all hash values of all documents that are on both the CCM Computers and the Transfer Drives (that is, the same document with an identical hash value must appear on both the CCM Computers and one of the Transfer Drives). 2. Plaintiff's expert will then run a hash value comparison of those documents to the hash values from all documents on the Prism Computers (or Beal Images), and no document will be eliminated on the basis that either party (or its expert) believes the document to be a duplicate. No date restriction will be implemented at any point in the search. 3. The search results will be provided to counsel for each party in a way that identifies for each document: the specific location on each CCM Computer and Transfer Drive on which it is located, the specific location on each Prism Computer on which it is located, and the specific document associated with the hash value, to the extent recoverable. 4. If a document that appears in identical form on a CCM Computer, a Transfer Drive and a Prism Drive can be produced based on the current condition of the images of the Prism Computers, it will be provided to counsel for each party. 5. Each party shall bear its own costs in completing the protocol. 6. Such protocol shall be completed within sixty (60) days of the date of this order. B. Sanctions Plaintiff requests the court impose a sanction for costs against Defendants for failing to allow Plaintiff to fully conduct electronic discovery since the court's Order on preliminary injunctive relief in 2008. The court declines to impose the sanctions requested by Plaintiff for several reasons. First, Plaintiff seeks a broad judgment for costs against Defendants including the costs Plaintiff has incurred over years of this litigation. While the court recognizes that Plaintiff has filed multiple motions to compel related to the production of electronic discovery, many of the motions were made early in the litigation prior to the parties providing the court with comprehensive explanations concerning the technical methodology at dispute in the current motion. Furthermore, upon review of each of the previous motions, the Magistrate Judge did not find the imposition of sanctions to be warranted. Additionally, the present motion actually concerns Plaintiff's efforts to broaden the scope of the Charleston Protocol. Plaintiff complains that Defendants did not properly conduct the search of the electronic documents in accordance with the Charleston Protocol and have undertaken efforts to thwart Plaintiff's review of the devices at issue. However, Plaintiff concedes that it did not follow the Charleston Protocol either and does not appear to have made efforts to perform the searches even on the limited scope to which Defendants were amenable. Although Plaintiff now contends that it agreed to a protocol that was too narrow in scope, the fact remains that it agreed to the Charleston Protocol. The court does not believe Defendants should be sanctioned for opposing Plaintiff's efforts to modify and extend the protocol agreed upon by the parties. *4 The court believes that today's order resolves the remaining issues concerning electronic discovery and, therefore, will strongly consider the imposition of sanctions against the party who takes an unjustified position on any further discovery disputes on the matter. Notwithstanding the foregoing statement, the court will entertain legitimate motions concerning this discovery. CONCLUSION Accordingly, the court grants Plaintiff Uhlig's Motion to Modify Protocol for Conducting Examination of Defendants' Computers [681] as outlined herein. IT IS SO ORDERED. Footnotes [1] Amanda Dorsey Marcengill, a former defendant in this action, has attested that the deposition testimony she provided earlier in this litigation regarding her participation in the events that lead to and followed Defendant Shirley's departure from Plaintiff was inaccurate. See Amanda Dorsey Marcengill Affidavit [Doc. 681–4]. While the court makes no determination as to the veracity of or the weight to be accorded to Ms. Dorsey's Affidavit, Ms. Dorsey's Affidavit represents one of the factual developments in this case which indicates the need for more comprehensive electronic discovery.