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 Filed July 23, 2019 Counsel Andrew James Ghekas, John A. Anthony, Lydia Marie Gazda, Stephenie Biernacki Anthony, Anthony & Partners, LLC, Dominic Anthony Isgro, Dale R. Sisco, P.A. D/B/A Sisco-Law, Rachel May Zysk, Eduardo A. Suarez, The Suarez Law Firm, P.A., Tampa, FL, for Plaintiff. John Morgan Brunson, Law Office of John Morgan Brunson, St Petersburg, FL, Michael Sansbury, Pro Hac Vice, Morgan B. Franz, William Thomas Paulk, Spotswood Sansom & Sansbury, LLC, Birmingham, AL, Sean Estes, Hoyer Law Group, LLC, Ailen Cruz, Wiand Guerra King, PL, Tampa, FL, for Defendant ServisFirst Bank Inc. George L. Guerra, Jared J. Perez, Peter B. King, Chemere Ellis, Guerra King P.A., Robert A. Stines, Freeborn & Peters LLP, Lawrence Joseph Dougherty, Wiand Guerra King, Tampa, FL, Burton Webb Wiand, Law Office of Burton W. Wiand PA, Clearwater, FL, for Defendant Gregory W. Bryant. Gregg Moran, Dade City, FL, for Defendant Jonathan Zunz. Sneed, Julie S., United States Magistrate Judge ORDER *1 THIS MATTER is before the Court on Centennial Bank's Motion for Order to Show Cause Why Murrin Should Not be Found in Contempt of Court for Failure to Comply with the Court's Order (“Motion”). (Dkt. 397.) For the reasons set forth below, the Motion is denied. BACKGROUND Defendants Gregory Bryant, Patrick Murrin, Gwynn Davey and Jonathan Zunz were all officers at Bay Cities Bank. (Dkt. 199 ¶ 10.) In 2015, Plaintiff, Centennial Bank acquired Bay Cities Bank. (Dkt. 199 ¶ 10.) However, shortly after the acquisition, the individual defendants were hired by the corporate defendant, ServisFirst Bank. (Dkt. 199 ¶ 10.) In the Second Amended Complaint, Centennial Bank alleges numerous “statutory, contractual, and common law causes of action tied to a pattern of wrongful conduct by the [d]efendants to deprive Centennial of the benefit of the bargain in acquiring Bay Cities and hiring” the individual defendants. (Dkt. 199 ¶ 10.) On September 26, 2016, the Court entered an agreed order providing for the appointment of a forensic expert to inspect and image the electronic devices and accounts of Gwynn Davey and Patrick Murrin. (Dkt. 192.) A year later, Centennial Bank filed a motion seeking relief from the agreed procedure established for the forensic examiner. (Dkt. 255.) After a lengthy stay in the case, on January 16, 2019, the Court granted in part the motion based on the parties’ agreed resolution. (Dkt. 381.) Specifically, the parties agreed to the additional production of files and reports from the forensic expert. (Dkt. 381 at 1–2.) In the instant Motion, Centennial alleges that Murrin failed to disclose a Windows-based desktop computer and two external hard drives with back-ups of Murrin's devices. (Dkt. 397 at 3.) Accordingly, Centennial moves for a civil contempt order and sanctions under Federal Rule of Civil Procedure 37(b). APPLICABLE STANDARDS Under Rule 37(b), if a party “fails to obey an order to provide or permit discovery ... the court where the action is pending may” treat “as contempt of court the failure to obey.” Fed. R. Civ. P. 37(b)(2)(A)(vii). The Court may also award “the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). The Court “has broad authority under Rule 37 to control discovery” and “sanctions are intended to prevent unfair prejudice to the litigants and [e]nsure the integrity of the discovery process.” Gratton v. Great Am. Commc'ns, 178 F.3d 1373, 1374 (11th Cir. 1999). “In a civil contempt proceeding, the petitioning party bears the burden of establishing by ‘clear and convincing’ proof that the underlying order was violated.” Howard Johnson Co. v. Khimani, 892 F.2d 1512, 1516 (11th Cir. 1990). This proof “must also demonstrate that (1) the allegedly violated order was valid and lawful; (2) the order was clear, definite and unambiguous; and (3) the alleged violator had the ability to comply with the order.” Jordan v. Wilson, 851 F.2d 1290, 1292 n.2 (11th Cir. 1988). Nonetheless, “[c]onduct that evinces substantial, but not complete, compliance with the court order may be excused if it was made as part of a good faith effort at compliance.” Khimani, 892 F.2d at 1516. Additionally, sanctions are not generally warranted where a party has shown that it made all reasonable efforts to comply with the court's order. BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1050 (11th Cir. 1994). ANALYSIS *2 The order establishing the protocol for the imaging of Murrin's devices (the “ESI Order”) required “Dwayne Denny, a computer forensics consultant chosen by Centennial” to “produce mirror images of all mobile devices, computers and portable or detachable hard drives in [Murrin's] personal possession, custody, or control and used by [Murrin] since January 1, 2015 ....” (Dkt. 192 at 2.) Centennial argues that Murrin disobeyed the ESI Order by failing to disclose a Windows-based desktop computer and two external hard drives with back-ups of Murrin's devices. (Dkt. 397 at 3.) In response, Murrin argues that sanctions are not warranted because he “substantially complied with the ESI Order in good faith.” (Dkt. 406 at 3.) The Court agrees with Murrin that Centennial has not established by clear and convincing evidence that Murrin violated an unambiguous order. The process of imaging Murrin's devices originated from allegations that e-mails were deleted in 2015. (Dkt. 171 at 2.) Although the ESI Order does not list specific devices to be imaged, it was reasonable for Murrin to believe—as he states—that the purpose of the imaging process was to search devices used in 2015, while he was employed by Bay Cities Bank or Centennial Bank, for evidence of deleted but relevant data. (Dkt. 407 ¶ 2.) Thus, it was reasonable for Murrin to believe that the ESI Order did not encompass his family computer that he obtained in 2016, his external hard drive used to store primarily family photographs, and his external hard drive used to store primarily iTunes purchases. (Dkt. 407 ¶¶ 6–9.) As such, Murrin's declaration shows substantial, good-faith compliance. See Khimani, 892 F.2d at 1516. Based on Murrin's reasonable interpretation of the ESI Order, he provided his iPhone, iPad, and laptop because he maintained his “contact list on those devices and otherwise used them to access Bay Cities’ and Centennial's email systems.” (Dkt. 407 ¶ 4.) Therefore, sanctions are not warranted. See BankAtlantic, 12 F.3d at 1050. Additionally, sanctions are not warranted because Centennial cannot show unfair prejudice. See Gratton, 178 F.3d at 1374. Both parties acknowledge that the devices have now been made available for imaging in accordance with the ESI Order. (Dkt. 453 at 2; Dkt. 457 at 3.) Accordingly, it is ORDERED that: 1. Centennial Bank's Motion for Order to Show Cause Why Murrin Should Not be Found in Contempt of Court for Failure to Comply with the Court's Order (Dkt. 397) is DENIED; and 2. Centennial's Motion to Strike Murrin's Improper Notice (Dkt. 457) is DENIED as MOOT. DONE and ORDERED in Tampa, Florida, on July 23, 2019.