CENTENNIAL BANK, Plaintiff, v. SERVISFIRST BANK INC., GREGORY W. BRYANT, GWYNN DAVEY, PATRICK MURRIN, and JONATHAN ZUNZ, Defendants Case No: 8:16-cv-88-T-36JSS United States District Court, M.D. Florida, Tampa Division Filed June 01, 2017 Counsel Andrew James Ghekas, Dominic Anthony Isgro, John A. Anthony, Stephenie Biernacki Anthony, Anthony & Partners, LLC, Eduardo A. Suarez, The Suarez Law Firm, P.A., Tampa, FL, for Plaintiff. William Thomas Paulk, Michael Sansbury, Michael Sansbury, Spotswood Sansom & Sansbury, LLC, Birmingham, AL, Burton Webb Wiand, Gianluca Morello, Jared J. Perez, Wiand Guerra King, PL, Sean P. Keefe, James, Hoyer, Newcomer & Smiljanich, PA, John W. Campbell, Constangy, Phillip J. Harris, Constangy, Brooks & Smith, LLP, Tampa, FL, for Defendants. Sneed, Julie S., United States Magistrate Judge ORDER ON PLAINTIFF'S MOTION FOR ORDER TO SHOW CAUSE *1 THIS MATTER is before the Court on Plaintiff's Motion for Order to Show Cause Why Davey and Murrin Should Not Be Found in Contempt of Court for Failure to Comply with the Court's Order (“Motion”) (Dkt. 232), and Defendants Patrick Murrin's and Gwynn Davey's responses in opposition (Dkts. 235, 236, 238). For the reasons that follow, the Motion is denied. The Motion involves a discovery dispute between Plaintiff and Defendants Patrick Murrin and Gwynn Davey (together, “ServisFirst Employees”), that dates back to March 2016. (Dkt. 232 ¶ 2.) In March 2016, Plaintiff served requests for production on the ServisFirst Employees, who, at the time, were not parties to the litigation. (Id.) Plaintiff filed a motion to compel the ServisFirst Employees' responses, which the Court granted. (Dkts. 88, 165.) Thereafter, Plaintiff moved the Court to appoint a neutral forensic expert to mirror image and examine the ServisFirst Employees' electronic devices, contending that such a measure was appropriate because the ServisFirst Employees had previously mishandled and deleted potentially relevant data. (Dkt. 171.) After the Court held a hearing on the motion and set the motion for a continued evidentiary hearing (Dkts. 186, 187), the parties came to an agreement as to how the forensic imaging and extraction would be conducted, and requested that the Court enter an agreed order setting forth the agreed procedures. (Dkt. 190.) In September 2016, the Court entered the agreed order (“Agreed Order”). (Dkt. 192.) In pertinent part, the Agreed Order provided that the parties would confer regarding a set of agreed-to search terms Plaintiff's consultant would use to conduct searches of the ServisFirst Employees' electronic devices. (Id. ¶ 2.C.) The consultant would mirror image the results of the searches and then recover from the forensic images all available records and metadata. (Id.) Thereafter, the consultant would provide the files to the ServisFirst Employees' counsel, who would review them for privilege and responsiveness. (Id. ¶¶ 2.D, 2.E.) The ServisFirst Employees' counsel had twenty days from receipt of the files to produce responsive documents and serve a privilege log. (Id. ¶ 2.E.) Shortly after the Agreed Order was entered, Plaintiff's counsel provided the ServisFirst Employees' counsel, Gianluca Morello, with proposed search terms. (Dkt. 236-1.) Mr. Morello expressed concerns that the broadness of the search terms would generate a large volume of documents that may not all be responsive, which would necessitate more than twenty days for him to review the extracted files. (Id.) After conferring over a period of months, in January 2017, Plaintiff's counsel appeared to agree that the parties would confer about whether more than twenty days would be necessary for review of the files once Mr. Morello received the files. (Id.) According to Plaintiff's counsel, the consultant provided the ServisFirst Employees' counsel with the files in early March 2017, making the responsive documents and privilege logs due in late March 2017. (Dkt. 232-2.) During this time, Mr. Morello withdrew as the ServisFirst Employees' counsel. (Dkt. 233.) In early April 2017, Jared Perez, counsel for the ServisFirst Employees, notified Plaintiff's counsel that he believed he needed an encryption key to access the files. (Dkt. 232-1.) The parties conferred regarding accessing the files and which files should be reviewed. (Id.) After expressing concerns with the delays in production, Plaintiff filed the Motion. (Id.) *2 On the day the Motion was filed, April 17, 2017, the ServisFirst Employees served their first round of production. (Dkt. 236 ¶ 9.) They served two more rounds of production in April 2017 and served a privilege log. (Id. ¶¶ 10–11.) After these three rounds of production and after the Motion was filed, on April 28, 2017, Mr. Perez sent a letter to Plaintiff's counsel stating that he thought all responsive documents had been produced, but there were some categories of documents he believed to be nonresponsive or potentially nonresponsive, about which he wished to confer. (Dkt. 236-4.) Specifically, Mr. Perez described difficulties accessing some files, but explained that he believed these files contained nonresponsive documents such as music files and family photographs. (Id.) He stated that he would nonetheless review the files and requested suggestions to access the file. (Id.) Mr. Perez avers that on May 25, 2017, the parties conferred and Plaintiff's counsel stated that the documents Mr. Perez believed to be nonresponsive “might contain responsive information due to the ‘carving’ process [Plaintiff's] forensic expert used to extract the data,” a process that “captures data not only for what a file purports to and appears to be but also surrounding data that is only viewable in text format.” (Dkt. 238 ¶ 4.) He further avers that the ServisFirst Employees “are exploring ways to produce any additional responsive documents to [Plaintiff] while also protecting [the ServisFirst Employees'] attorney-client privilege and privacy.” (Id. ¶ 11.) In the Motion, Plaintiff requests that the Court enter an order to show cause why the ServisFirst Employees should not be held in civil contempt for failing to comply with the Agreed Order. (Dkt. 232.) In response, the ServisFirst Employees argue that they have produced most if not all of the responsive documents and that the parties continue to confer regarding whether some documents are indeed responsive. (Dkt. 235 at 10.) Thus, they argue the Motion should be denied as moot. (Id.) They also argue that an order to show cause is unwarranted because the parties agreed to be flexible with the Agreed Order's requirement of production within twenty days in light of the volume of files for the ServisFirst Employees' counsel to review. (Id. at 11–12.) Upon review of the parties' filings, the Court finds that an order to show cause is unwarranted. Beginning on the day the Motion was filed, the ServisFirst Employees have served three rounds of production. Although there have been delays in their production, these delays have been a product of the parties' conferring regarding search terms and accessing the files, as well as a natural result of the transition attendant with the withdrawal of lead counsel for the ServisFirst Employees. See Newman v. Graddick, 740 F.2d 1513, 1528 (11th Cir. 1984) (“Civil contempt is only appropriate where the proof of noncompliance with a court order is clear and convincing.”). As to the issues about which the parties are still conferring, set forth in Mr. Perez's letter to Plaintiff's counsel (Dkt. 236-4), the parties are directed to meet and confer by June 30, 2017, regarding these issues, and the ServisFirst Employees shall produce responsive documents and serve a privilege log, if applicable, by July 31, 2017. As provided in the Agreed Order, “[n]othing in this Order shall prevent [Plaintiff] from filing a motion to compel if it is unable to resolve a claim of privilege or relevance with the ServisFirst Employees, but the Parties are strongly encouraged to resolve these issues without Court intervention.” (Dkt. 192 ¶ 2.E.) Accordingly, it is ORDERED that Plaintiff's Motion for Order to Show Cause Why Davey and Murrin Should Not Be Found in Contempt of Court for Failure to Comply with the Court's Order (Dkt. 232) is DENIED; however, the parties are directed to meet and confer regarding any outstanding production as ordered herein. *3 DONE and ORDERED in Tampa, Florida, on June 1, 2017.