John W. FERRON, Plaintiff, v. ECHOSTAR SATELLITE, LLC, et al., Defendants Case No. 2:06-cv-00453 United States District Court, S.D. Ohio, Eastern Division Filed June 23, 2008 Counsel Lisa A. Messner, Mac Murray, Petersen & Shuster LLP, New Albany, OH, Jessica G. D'Varga, Saia & Piatt, Inc., Columbus, OH, for Plaintiff. Jill Patricia Meyer, Frost Brown Todd LLC, Cincinnati, OH, Kevin Shook, Frost Brown Todd LLC, Benjamen E. Kern, Benesch Friedlander Copeland & Aronoff LLP, Neal Jonathan Barkan, Barkan & Barkan Co., LPA, Columbus, OH, Eric Larson Zalud, Benesch Friedlander Coplan & Aronoff, Cleveland, OH, Mariann E. Butch, Bay Village, OH, Vincent J. Trimarco, Sr., Smithtown, NY, for Defendants. Watson, Michael H., United States District Judge OPINION AND ORDER *1 Plaintiff in this diversity action asserts claims under the Ohio Consumer Sales Practices Act (“CSPA”), Ohio Rev. Code § 1345.12. This matter is before the Court on plaintiff’s objections to the Magistrate Judge’s February 6, 2008 opinion and order, in which the Magistrate Judge permitted discovery of information on plaintiff’s computers. For the reasons that follow, the Court OVERRULES plaintiff’s objections and AFFIRMS the Magistrate Judge’s decision. I. Background In the proceeding before the Magistrate Judge, defendants represented they believed plaintiff’s computers contained electronically stored information not available on the CD-ROMs plaintiff had previously produced. In essence, defendants maintained the information sought was relevant to whether the subject emails were “consumer transactions” within the meaning of the CSPA because plaintiff “has developed a scheme aimed at receiving, gathering, sorting, and storing huge volumes of commercial emails for the sole purpose of formulating and asserting CSPA claims against companies such as Defendants whose names may appear in those emails.” (Doc. 157., p. 9.) Defendants also maintained the information was relevant to establish a preexisting business relationship as a defense to plaintiff’s Ohio Electronic Mail Advertisement Act (“OEMAA”) claims. In her decision, the Magistrate Judge noted plaintiff testified at his deposition that he receives hundreds of emails at his personal and work addresses. He has saved thousands of these emails. Plaintiff sorts and maintains DISH Network emails in folders using a Microsoft Outlook software application. Moreover, plaintiff acknowledges he has affirmatively contacted DISH Network retailer websites and has occasionally entered personal information, including his email address, on those websites. Plaintiff further concedes he has consented to receive some commercial emails. In light of plaintiff’s testimony, the Magistrate Judge concluded the information the defendants sought from plaintiff’s computers was relevant to the claims and defenses asserted under the OCSPA and the OEMMA. II. Standard of Review Fed. R. Civ. P. 72(a) governs the review of a magistrate judge’s order which is not dispositive of a claim or defense. Rule 72(a) provides a district judge must consider timely objections to the magistrate judge’s order “and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Id. “[A] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. Bessemer City, 470 U.S. 564, 573 (1985); Certified Restoration Dry Cleaning Network, LLC. v. Tenke Corp., 511 F.3d 535, 541, (6th Cir. 2007). III. Discussion Plaintiff advances two arguments in support of his objections to the Magistrate Judge’s decision. First, plaintiff asserts his consent to receive the email advertisements is not relevant to any of the claims or defenses in this case. Second, plaintiff maintains his computers contain sensitive information protected by the attorney-client privilege and attorney work product doctrine which the Magistrate Judge’s decision failed to protect. A. Relevance of Discovery *2 The Court agrees with the Magistrate Judge’s holding that the requested electronically stored information (“ESI”) is discoverable. Rule 26(b) states, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense[.]” Fed. R. Civ. P. 26(b). “The scope of examination permitted under Rule 26(b) is broader than that permitted at trial. The test is whether the line of interrogation is reasonably calculated to lead to the discovery of admissible evidence.” Mellon v. Cooper-Jarrett, Inc.,424 F.2d 499, 500-01 (6th Cir. 1970). Plaintiff asserts that discovery of ESI located on his home and work computers is irrelevant to any claim or defense, thus not reasonably calculated to lead to the discovery of admissible evidence. Specifically, he asserts that his consent to receive advertisements is not determinative of any claim or defense. Defendants contend that such ESI is relevant because it relates to plaintiff’s claim that he is a consumer within the meaning of the CSPA § 1345.12, and to their own defense to plaintiff’s new claim under OMEAA § 2307.64, specifically based on plaintiff’s alleged preexisting business relationship. The Court finds that the requested ESI is relevant to both causes of action. 1. Consumer Sales Protection Act O.R.C. § 1345.01 et seq. requires a cause of action be brought by a “consumer” injured under the statute while engaged in a “consumer transaction.” Ohio courts have construed “consumer” with the legislative policy of protecting the unwary consumer in mind. Elder v. Fischer, 129 Ohio App. 3d 209, 214 (1998). Defendants here assert that plaintiff “has developed a scheme [whose] sole purpose [is] formulating and asserting CSPA claims against companies such as Defendants' whose names may appear in those emails.” (Supplemental Memo., p. 4.) Proof of such a showing could place plaintiff beyond the intended class of consumers whom the statute protects, and this evidence would be highly relevant to the validity of plaintiff’s claim. Plaintiff acknowledges receipt of hundreds of daily emails; thousands have been actively sorted and stored in folders on his home and work computers. (Deposition of John W. Ferron (“Ferron Depo”), pp. 17-18, 49-51, 127.) Plaintiff admits to taking affirmative steps to contact DISH Network retailer websites, and has entered personal information, including an email address, on those sites. (Id., pp. 20, 190-91, 202, 214-16.) Further, plaintiff’s occasional use of fictitious names while entering personal information could evince a knowledge that he would receive return emails from defendants. (Id., pp. 202-204.) Plaintiff asserts that these admissions are irrelevant, citing State ex rel. Charvat v. Frye, and using the Telephone Consumer Protection Act (“TCPA”) by analogy for the supposition that consumers generally have no duty to mitigate under consumer protection statutes. 114 Ohio St. 3d 76, 80 (2007). Despite any persuasive effect of such an analogy, deciding the defense of mitigation is unnecessary to a finding that the requested ESI is relevant. The key question is not whether the plaintiff mitigated damages, but whether he is a consumer within the definition of the statute. Unlike the present case, there was never a question in Frye of whether plaintiff was a consumer. See Id. Additionally, the TCPA upon which plaintiff relies contains restrictions on eligibility for damages which reiterates that such legislation is not designed to protect those with previously established business relationships, or who have permitted receipt of otherwise actionable communications. 47 U.S.C. § 227(b)(1)(B)-(C). Defendants contend that plaintiff’s admissions raise questions concerning plaintiffs intent. In support of their contentions, they believe the plaintiff’s computer contains the following ESI that is not available on the previously produced CD-ROMs: *3 1. Plaintiff’s original email messages and other files, in their native format, and in the actual place in which they are stored on Plaintiff’s home and/or office computers (e.g., Microsoft Outlook folders and subfolders); 2. Evidence of Plaintiff’s receipt, filtering, sorting, and storing the subject emails on his computers; 3. Evidence of Plaintiff’s admitted practice of visiting various websites relating to DISH Network products and services; 4. Evidence of Plaintiff’s admitted practice of entering his name, email address, and/or other information into those websites; 5. Evidence of Plaintiff’s admitted practice of using fictitious names to track commercial emails he receives; 6. Evidence that Plaintiff received one or more emails as a result of entering his email address into such websites. (Supplemental Memo., p. 4.) Due to the necessity of establishing that plaintiff has acted as a “consumer” under O.R.C. § 1345.01 et seq., any evidence that contests this point is relevant. 2. Ohio Electronic Mail Advertisement Act In response to plaintiffs second cause of action, arising under O.R.C. § 2307.64, the defendants have specifically raised the statutory defenses set forth therein. Doc. 78, Answer to Plaintiff’s Second Amended Complaint). The Ohio Electronic Mail Advertisement Act, O.R.C. § 2307.64 (“OEMAA”), provides that a party shall not be liable if one of several exceptions apply.[1]Keeping in mind the OEMAA’s definition of “pre-existing business relationship”,[2] plaintiff’s practice of entering his name and email address into websites could amount to a ‘request by the recipient,’ a fact directly relevant to defendants' ability to establish a defense under § 2307.64 (B) (3) (a). Further, plaintiff’s consent to receipt of emails is clearly relevant to defendants' ability to establish a defense under § 2307.64 (B) (3) (b). As a result of plaintiff’s testimony, the defendants believe the requested ESI likely contains evidence to support these defenses. In light of plaintiffs testimony discussed supra, and the analysis of the causes of action brought under O.R.C. §§ 1345.01 and 2307.64, the Court affirms the magistrate judge’s holding that the requested ESI is both relevant and discoverable under the broad scope of Rule 26(b). The defendants' request is reasonably calculated to lead to the discovery of admissible evidence. Where as the CD-ROMs contain only the emails themselves, the requested ESI is different in kind, and not duplicative of the available hard-copy data.[3] B. Protected Information *4 The Court rejects plaintiff’s argument that the Magistrate Judge’s opinion failed to protect information precluded from discovery by attorney-client privilege and the work-product doctrine. The Magistrate Judge’s holding explicitly states the expectation that all parties will cooperate to formulate a reasonably calculated procedure for providing defendants with the discovery to which they are entitled, while simultaneously protecting privileged information. (Order (Doc. 151), at 9.) The Court now clarifies the procedure to be followed. Determining the proper scope of discovery falls within the broad discretion of the trial court. Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998). Rule 34 of the Federal Rules of Civil Procedure permits discovery of documents in the “possession, custody, or control” of a party, when the documents constitute or contain matters within the scope of Rule 26(b). Fed. R. Civ. P. 34(a). The 2006 advisory committee notes make it clear “that discovery of electronically stored information stands on equal footing with discovery of paper documents.” Fed. R. Civ. P. 34 Advisory Committee’s Note on 2006 Amendments. As such, plaintiff cannot shield discoverable electronic data by cataloging it along side attorney-client privileged information any more than he could by filing protected and unprotected paper documents in the same filing cabinet. Such a policy would permit wide-scale circumvention of Rule 34, and is untenable. Though electronic discovery poses unique challenges in separating the two types of information, courts have adopted procedures attenuated to the specific needs and challenges of their particular case to ensure that discoverable information is appropriately parsed from protected information. Because of similarities in factual circumstances, scope and relevance of requested discovery, and the relative burden on the parties, the Court adopts the discovery procedures established in Ferron v. Search Cactus L.L.C., No. 2:06-cv-327, 2008 U.S.Dist. LEXIS 34599, at *9-14 (S.D. Ohio April 28, 2008). A mirror image of plaintiffs hard drive[4] will be provided to defendants according to the procedure discussed below. In recognizing personal records as confidential, the Court ORDERS plaintiff to permit plaintiffs forensic computer expert to mirror image plaintiff’s computer systems' hard drives and for plaintiff to store the images safely. The expert shall then remove only plaintiff’s personal confidential information that could not reasonably lead to the discovery of information relevant to this litigation. Plaintiff shall provide defendants with the protocol his expert utilized to remove the confidential information. Second, the Court will follow the emerging trend of permitting defendants' forensic computer expert to review the findings with plaintiff to locate any privileged documents that will be removed prior to forwarding the mirror image to defendants. See, e.g., Thielen v. Buongiorno USA, Inc., No. 1:06-cv-16, 2007 U.S. Dist. LEXIS 8998, at *8 (W.D. Mich. Feb. 8, 2007) (ordering defendant to select forensic expert to mirror image and review plaintiff’s computer hard drive and report findings under confidence to plaintiff’s counsel prior to forwarding it to defendant’s counsel); Search Cactus, 2008 U.S. Dist. LEXIS 34599, at *13-14 (adopting Thielenapproach). The Court acknowledges that mirror-imaging of each computer hard drive should take approximately four to eight hours, and believes this time-frame is a reasonable intrusion given the circumstances. *5 Accordingly, the Court ORDERS plaintiff to permit defendants' forensic computer expert to mirror image plaintiff’s computer systems' hard drives. Defendants' expert shall review his findings in confidence with plaintiff prior to making any findings available to defendants. Plaintiff shall identify for deletion any information that is irrelevant and create a privilege log of any relevant information for which he claims privilege. The expert shall remove the information claimed as privileged and provide all other information to defendants. The Court adopts the procedures of Search Cactus pertaining to forensic experts and costs. 2008 U.S. Dist. LEXIS 34599, at 14-15. Courts have sometimes appointed computer forensic experts as officers of the court to “reduce privacy intrusions and privilege waiver issues during forensic analysis” when the situation warrants such action. Mark E. Borzych, Avoiding Electronic Discovery Disputes: Practice Questions Answered, 41 AZ Attorney 36 (January 2005). See also Thielen, 2007 U.S. Dist. 8998, at *8 (finding no waiver of privilege occurred when third party forensic analysis was ordered). Having found the identified forensic experts of both parties to be qualified, both shall serve as officers of the Court. IV. Disposition Based on the above, the Court OVERRULES plaintiff’s objections to the Magistrate Judge’s February 6, 2008 opinion and order, and AFFIRMS the Magistrate Judge’s decision. The Court ORDERS: 1. Within seven days of the date of this Opinion and Order, plaintiff’s forensic computer expert shall mirror image both of plaintiff’s computer systems' hard drives and plaintiff shall preserve this mirror image. 2. Plaintiff’s forensic computer expert shall then remove only plaintiff’s confidential personal information from the mirror image of plaintiff’s computer systems' hard drives. Plaintiff’s expert shall provide defendants with the protocol he utilized to remove the confidential information. 3. Plaintiff shall then provide defendants' computer forensic expert access to his computer systems' hard drives. 4. Defendants' forensic computer expert shall mirror image plaintiff’s computer systems' hard drives in approximately four to eight hours for each system. If the expert finds that this is not enough time, plaintiff is expected to be reasonable in allowing some additional time. Defendant is expected to be considerate with regard to scheduling times that are less intrusive to plaintiff and his business. 5. Defendants' expert shall review his findings in confidence with plaintiff prior to making any findings available to defendants. 6. Plaintiff shall identify for deletion any information that is irrelevant and create a specific privilege log of any relevant information for which he claims privilege. The computer forensic expert shall remove the information claimed as privileged and provide all other information to defendants. 7. Defendants' expert shall provide plaintiff with the protocol utilized to remove the privileged information. 8. The forensic computer experts shall act as officers of the Court. Defendants shall bear the costs of their expert and plaintiff shall bear the cost of his expert. The Clerk shall remove Doc. 154 from the Court’s pending motions list. IT IS SO ORDERED. [1] The relevant portion of the statute states: A person does not violate division (B) of this section if the person transmits or causes to be transmitted to the recipient an electronic mail advertisement when any of the following apply: (a) The person has a pre-existing business or personal relationship with the recipient. (b) The recipient has consented or has agreed as a condition of service to receive the electronic mail advertisement. R.C. § 2307.64 (B) (3) (a)-(b). [2] “pre-existing business relationship” means that there was a business transaction between the initiator and the recipient of a commercial electronic mail message during the five-year period preceding the receipt of that message. A pre-existing business relationship includes a transaction involving the free provision of information, goods, or services requested by the recipient. A pre-existing business relationship does not exist after a recipient requests to be removed from the distribution lists of an initiator pursuant to division (B) of this section and a reasonable amount of time has expired since that request. O.R.C. § 2307.64 (A) (8). [3] In addition to permitting the requested discovery as relevant to a claim or defense, the court further retains the discretion to permit broader discovery of material relevant to the subjected matter upon a showing of “good cause” as prescribed in Rule 26 (b) (1). Though not specifically invoked here, the Court believes that plaintiff’s testimony (discussed supra ) provides ample cause to permit the requested discovery. [4] A mirror image copy represents a snapshot of the computer’s records. It contains all the information in the computer, including embedded, residual, and deleted data. See 7-37A Moore’s Federal Practice - Civil § 37A.03[1]-[3].