DECURTIS LLC, Plaintiff, v. CARNIVAL CORPORATION, Defendant. CARNIVAL CORPORATION, Plaintiff, v. DECURTIS CORPORATION and DECURTIS LLC, Defendants Case No. 20-22945-Civ-SCOLA/TORRES United States District Court, S.D. Florida Signed December 10, 2021 Counsel Jared Kneitel, Pro Hac Vice, Wuinn Emanuel Urquhart & Sullivan LLP, Seattle, WA, Jason Paul Stearns, Freeborn & Peters LLP, Tampa, FL, Jeffrey C. Wu, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan LLP, Salt Lake City, UT, Andrew C. Nordahl, Pro Hac Vice, David C. Gustman, Pro Hac Vice, Jeffery M. Cross, Pro Hac Vice, Jennifer L. Fitzgerald, Pro Hac Vice, Jill C. Anderson, Pro Hac Vice, Freeborn & Peters LLP, Marc L. Kaplan, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan, LLP, Chicago, IL, James D. Judah, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan LLP, San Francisco, CA, John F. O'Sullivan, Quinn Emanuel, Miami, FL, Justin C. Griffin, Pro Hac Vice, Patrick T. Schmidt, Pro Hac Vice, Scott L. Watson, Pro Hac Vice, Zachary A. Schenkkan, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan LLP, Los Angeles, CA, for DeCurtis LLC. Diana Marie Fassbender, Eileen M. Cole, Pro Hac Vice, Emily Luken, Pro Hac Vice, John Jurata, Jr., Pro Hac Vice, Steven J. Routh, Orrick, Herrington & Sutcliffe LLP, Washington, DC, Jorge Tadeo Espinosa, Robert Ralph Jimenez, GrayRobinson, P.A., Miami, FL, Mayanne Downs, GrayRobinson, P.A., Orlando, FL, Olivia Clements, Pro Hac Vice, Orrick Herrington & Sutcliffe LLP, New York, NY, David R. Medina, Pro Hac Vice, Orrick, Herrington & Sutcliffe LLP, Los Angeles, CA, Johannes Hsu, Pro Hac Vice, Orrick, Herrington & Sutcliffe LLP, Irvine, CA, Laura B. Najemy, Pro Hac Vice, Sheryl K. Garko, Pro Hac Vice, Orrick Herrington & Sutcliffe LLP, Boston, MA, T. Vann Pearce, Orrick, Herrington & Sutcliffe LLP, Washington, for Carnival Corporation. Torres, Edwin G., United States Magistrate Judge ORDER ON DECURTIS’ MOTION TO COMPEL DISCOVERY AND MODIFY THE SCHEDULING ORDER *1 This matter is before the Court on DeCurtis, LLC's and DeCurtis Corporation's (collectively, “DeCurtis”) motion to compel discovery and modify the scheduling order. [D.E. 187]. Carnival Corporation (“Carnival”) filed a response in opposition on November 3, 2021. [D.E. 197]. DeCurtis replied on November 10, 2021. [D.E. 207]. The parties subsequently filed unredacted versions of the foregoing documents under seal. Therefore, the motion is now ripe for disposition. After careful consideration of the motion, response, reply, relevant authorities, and for the reasons discussed below, the motion is GRANTED in part and DENIED in part.[1] I. ANALYSIS DeCurtis seeks an order: (1) modifying the case schedule to extend the fact discovery cutoff to March 1, 2022 (with a corresponding adjustment of subsequent dates); (2) compelling Carnival to complete its production of relevant, non-privileged documents responsive to DeCurtis’ Requests for Production in advance of the fact discovery cutoff, which is currently set for December 23, 2021; (3) compelling Carnival to make John Padgett available for two days of Rule 30(b)(6) deposition testimony and a separate day of Rule 30(b)(1) deposition testimony; and (4) compelling Carnival to image Mr. Padgett's laptop and other storage devices for review, analysis, and production of recoverable, relevant documents. Carnival does not oppose the extension of relevant deadlines; however, it does oppose the balance of the relief sought. DeCurtis makes many arguments in support of its motion, but none of them are entirely persuasive. The scheduling order has previously been amended. Discovery has been underway for more than one calendar year. Nothing in DeCurtis's motion persuasively demonstrates good cause for why the current Scheduling Order should be materially changed. Other than specific relief granted here that addresses DeCurtis's more compelling points, it remains the case that the current Order should continue to govern and bring the discovery phase to a close. Trial remains set for September and the parties should turn their attention to the pretrial motion phase of the case based on the vast amount of information they have already collected and will still collect under this Order. Accordingly, the Court will extend the fact discovery cutoff to January 31, 2021. The remaining case deadlines will remain unchanged. This moderate extension is necessary for several reasons discussed below, where we also reject in part the extent of the relief that DeCurtis seeks. First, in light of Carnival's representation that its production of relevant, non-privileged documents responsive to DeCurtis’ Requests for Production was nearly but not fully complete before DeCurtis’ proposed deadline (and considering that fact discovery was previously scheduled to end this month), the Court will require Carnival to complete its production of relevant, non-privileged documents responsive to DeCurtis’ Requests for Production by December 31, 2021. In the interests of fairness, the Court will similarly require DeCurtis to complete its production of relevant, non-privileged documents responsive to Carnival's Requests for Production by December 31, 2021. Additionally, counsel for DeCurtis and Carnival shall file notices of compliance with the Court no later than January 3, 2022. The notices must be supported with a sworn affidavit from each party's respective counsel and corporate representative that attests to their compliance with the December 31, 2021 deadline. *2 Next, DeCurtis seeks further discovery related to a key Carnival official, Mr. Padgett, who DeCurtis argues is an essential individual fact witness as well as Carnival's designee for many Rule 30(b)(6) topics for which it seeks an extension of the discovery cutoff, three days of depositions, as well as new forensic discovery. Carnival concedes that Mr. Padgett is a critical witness and does not object to requiring Mr. Padgett to sit for two consecutive days of depositions. DeCurtis, however, seeks a total of three days to depose Mr. Padgett. After considering the supporting materials, some of which was filed under seal given the confidential nature of his testimony, the Court rules that two consecutive, seven-hour depositions should be sufficient for DeCurtis to effectively depose Mr. Padgett as a Rule 30(b)(6) witness and a Rule 30(b)(1) witness. Good cause does not exist to order Mr. Padgett to sit for two days of Rule 30(b)(6) testimony and a separate day for Rule 30(b)(1) testimony. Instead, Carnival must make Mr. Padgett available for two consecutive days of seven-hour depositions before January 31, 2021. Finally, turning to DeCurtis’ request to image Mr. Padgett's laptop and other storage devices for review, analysis, and production of recoverable, relevant documents, the Court finds that DeCurtis has not entirely met its burden for such extraordinary relief. See In re Furstenberg Fin. SAS, Case No. 16-cv-60266, 2018 WL 11256048, at *3 (S.D. Fla. Oct. 22, 2018) (finding such imaging to be an “unusual” and “drastic” remedy). Generally speaking, courts do not require a forensic analysis in the absence of consent unless “there has been significant non-compliance with discovery obligations.” Id. Accordingly, courts in this District will compel a party to turn over its computers for a forensic analysis only “where there is a strong showing that the party (1) intentionally destroyed evidence, or (2) intentionally thwarted discovery.” Id. (quoting Procaps S.A. v. Patheon Inc., Case No. 12-cv-24356, 2014 WL 11498061, at *3 (S.D. Fla. Dec. 30, 2014)). Regarding the first prong, “a party is found to have intentionally destroyed evidence when it purposefully destroys evidence that it has a duty to produce.” Id. (quoting Procaps S.A., 2014 WL 11498061, at *3). Here, DeCurtis argues that such intentional destruction has occurred because: (1) Carnival engaged, as a matter of company policy, in the automatic deletion of employee emails after 90 days – a practice that Carnival did not stop until roughly one month after the commencement of the litigation; (2) Carnival's “inoperable” XIC server was taken out of commission years before the litigation began; and (3) Mr. Padgett did not receive a written litigation hold letter until roughly two months after the commencement of the litigation. Accordingly, DeCurtis points to a series of emails including Mr. Padgett from 2015 that have not been produced by Carnival (but were already in DeCurtis’ possession) as proof that a combination of the “auto-delete” policy, the “inoperable” server, and the two-month delay in issuing a litigation hold somehow resulted in the intentional destruction of those emails and, in DeCurtis’ view, other responsive documents. But this does not make for a “strong showing” that Carnival purposefully destroyed evidence that it had a duty to produce. Nothing in the record indicates that the emails from 2015 cited by DeCurtis were automatically deleted by Carnival at a time when Carnival had a duty to produce them. By contrast, and assuming the 90-day “auto-delete” policy to be true, those emails would have been deleted long before this litigation commenced, when Carnival owed DeCurtis no identifiable duty of preservation or production. Similarly, nothing in the record indicates that Carnival purposefully rendered the XIC server inoperable (or did so at a time when it had a duty to produce its contents to DeCurtis). And nothing in the record, besides DeCurtis’ speculation, indicates that the two-month delay in issuing a litigation hold letter to Mr. Padgett resulted in the purposeful destruction of responsive evidence. *3 On the other hand, the “auto-delete” policy has different implications for emails sent in January 2020 and February 2020. The Court understands that, from the time this litigation commenced in April 2020 until some point in May 2020, Carnival's 90-day “auto-delete” policy was still in operation. It follows then that, after the commencement of this litigation, some email communications from January 2020 and February 2020 were deleted by Carnival pursuant to its “auto-delete” policy. There is no dispute that January 2020 and February 2020 fall within the relevant time frame for DeCurtis’ antitrust and tortious interference claims. Under these circumstances, Rule 37 relief is appropriate. For instance, in Playboy Enterprises, Inc. v. Welles, 60 F. Supp. 2d 1050 (S.D. Cal. 1999), the eponymous magazine publisher sued a former “Playmate of the Year,” asserting various trademark infringement and unfair competition claims. There, defendant had a “custom and practice” of deleting her emails soon after sending or receiving them. Playboy, 60 F. Supp. 2d at 1051. The publisher learned during meet-and-confer attempts that defendant had continued that practice throughout the litigation, irrespective of whether the email was responsive to the publisher's requests for production. Id. Accordingly, the court ordered the defendant to image her hard drive, recover the deleted emails, and produce relevant, responsive, and non-privileged emails to the publisher. Id. at 1054. Here, Carnival does not dispute that its “auto-delete” policy may have deleted responsive emails after the commencement of the litigation. Instead, Carnival argues that the policy was in place for “legitimate business reasons” and, because the “auto-delete” function was turned off after litigation commenced, this practice cannot amount to the intentional destruction of relevant evidence. Insofar as the “auto-delete” policy may have deleted responsive email communications from a time frame relevant to DeCurtis’ antitrust and tortious interference claims after the litigation commenced, the Court disagrees with Carnival. Carnival's policy was indisputably purposeful – even if its express purpose was not for the destruction of evidence – and, based upon the timeline of the litigation and the basic parameters of the “auto-delete” policy as this Court understands them, it is reasonable to conclude that relevant, responsive, and non-privileged emails were deleted by Carnival after the litigation commenced. Although the deletions may have occurred for slightly different reasons, Carnival's policy effected the same outcome as the defendant's periodic-deletion practice in Playboy. Accordingly, this Court will order Carnival to image any electronic device capable of sending or receiving email that remains within Carnival's possession, custody, or control and was used by Mr. Padgett during January 2020 and/or February 2020. Carnival shall review the contents of these devices for the limited purpose of recovering and analyzing responsive communications that may have been deleted by Carnival after the commencement of the litigation pursuant to Carnival's “auto-delete” policy. Carnival shall then produce all relevant, non-privileged emails that are responsive to DeCurtis’ Requests for Production. This production is subject to the December 31, 2021 deadline discussed above. Regarding the second prong of the non-compliance inquiry, a party intentionally thwarts discovery by “violating court orders to produce, purposefully hid[ing] responsive documents and fail[ing] to initiate a reasonable process to search for, collect and produce responsive electronically stored information.” In re Furstenberg Fin. SAS, 2018 WL 11256048, at *3 (modifications adopted). Based on this record, the Court does not find that Carnival has intentionally thwarted discovery. That finding is, of course, subject to any additional information DeCurtis learns in this process that shows otherwise. Accordingly, the recovery of responsive information from Mr. Padgett's electronic devices will remain limited to the purpose discussed above. II. CONCLUSION *4 For the foregoing reasons, it is hereby ORDERED and ADJUDGED that: A. DeCurtis’ motion to modify the scheduling order is GRANTED in part and DENIED in part with a full list of deadlines listed below: a. Deadline to File Joint Claim Construction and Prehearing Statement: October 1, 2021. b. Deadline to Complete Claim Construction Discovery: October 22, 2021. c. Deadline to File Opening Claim Construction Brief and File Opening Brief Asserting Claims for Invalidity and Unenforceability: November 5, 2021. d. Deadline to File Responsive Claim Construction Briefs: November 23, 2021. e. Deadline to Complete Production of Relevant, Non-Privileged Responses to Opponent's Requests for Production: December 31, 2021. f. Deadline to File Notice of Compliance Re: Requests for Production Completion: January 3, 2022. g. Deadline to Complete Fact Discovery: January 31, 2022. h. Deadline to Complete Mediation: January 10, 2022. i. Deadline to Disclose the Identity of Expert Witness and Serve Expert Witness Summaries/Reports pursuant to Fed. R. Civ. P. 26(a)(2): March 1, 2022. j. Deadline to Complete Expert Discovery: April 14, 2022. k. Deadline to File all Dispositive and Daubert Motions: April 23, 2022. l. Deadline to File all Pretrial Motions, including Motions in Limine: July 7, 2022. m. Deadline to File Pretrial Stipulation and Pretrial Disclosures: August 8, 2022. n. Deadline to File Jury Instructions: August 25, 2022. o. Calendar Call: August 31, 2022. p. Trial Commencing: September 5, 2022. B. DeCurtis’ motion for a production-completion deadline is GRANTED in part and DENIED in part. The parties shall complete their productions of relevant, non-privileged materials that are responsive to their respective opponent's requests for production by December 31, 2021. Furthermore, each party shall file a notice of compliance regarding the foregoing, which must be supported by a sworn affidavit from each party's counsel and corporate representative by January 3, 2022. C. DeCurtis’ motion to depose John Padgett over multiple days is GRANTED in part and DENIED in part. Mr. Padgett shall appear for two consecutive, seven-hour depositions – one relating to Rule 30(b)(6) testimony and the other relating to Rule 30(b)(1) testimony – at a mutually agreed time and place. D. DeCurtis’ motion to image the laptop and other electronic devices belonging to John Padgett is GRANTED in part and DENIED in part. Carnival shall recover and analyze the electronically stored information from any electronic device that (1) is capable of sending or receiving email, (2) was used by Mr. Padgett during January 2020 and/or February 2020, and (3) remains in Carnival's possession, custody, or control. Carnival's efforts shall be limited to the exclusive purpose of identifying responsive emails from January 2020 and/or February 2020 that may have been deleted pursuant to Carnival's “auto-delete” policy after the commencement of this litigation. Upon recovering and analyzing said emails, Carnival shall produce the relevant, responsive, and non-privileged emails to DeCurtis no later than December 31, 2021. If applicable, Carnival shall also provide DeCurtis with a privilege log at the time of production. *5 E. In all other respects, DeCurtis’ motion is DENIED. DONE AND ORDERED in Chambers at Miami, Florida, this 10th day of December, 2021. Footnotes [1] On November 20, 2020, the Honorable Robert N. Scola referred all pretrial matters to the undersigned Magistrate Judge for disposition. [D.E. 102].