WILBURT RIVERA and DINGY DENTS, LLC, Plaintiffs, v. JACK PARKER; EXECUTIVE AUTO SALES AND SERVICE, LLC; AND CHERIE PARKER, Defendants CIVIL ACTION FILE NO. 1:20-CV-3210-SCJ United States District Court, N.D. Georgia, Atlanta Division Filed May 04, 2021 Counsel Christine S. Tenley, McGlinchey Stafford, PLLC, New Orleans, LA, Joseph Alexander Little, IV, Pro Hac Vice, Burr & Forman LLP, Nashville, TN, Juan M. Rodriguez, Kevin Robert Stone, Burr & Forman, LLP, Atlanta, GA, Patrick Alfred Reid, Pro Hac Vice, Burr & Forman, LLP, Tampa, FL, for Plaintiffs. Eric G. Maurer, Norman Andrew Crain, Thomas Horstemeyer, LLP, Evan M. Altman, Office of Evan M. Altman, Leo Kogan, Brian S. Goldberg, Freeman Mathis & Gary, LLP, Atlanta, GA, for Defendants. Jones, Steve C., United States District Judge ORDER *1 This matter appears before the Court on Plaintiffs' Motion for Entry of Protective Order (Doc. No. [38]) and Defendants' Motion for Protective Order Regarding Limited Computer Forensic Imaging and Search Protocol (Doc. No. [39]).[1] After review, it appears that the parties' proposed protective orders contain similar provisions; however, there are eight provisions that the parties cannot agree on and are listed as follows: (1) Whether Plaintiffs may receive a redacted file activity list that does not contain any file names or path information at the same time Defendants receive a complete and unredacted file activity list for the period April 22, 2020 to July 22, 2020; (2) Whether Plaintiffs may receive the listing of any external storage device(s) that were connected to the computers for the period April 22, 2020 to July 22, 2020 at the same time Defendants receive the information, assuming no file names are contained in the results delivered to Plaintiffs or any other substantive information that could be subject to privileged objection which would be redacted; (3) Whether Plaintiffs may receive the results of the examiner's review of whether any wiping software, reinstallation of operating systems, or similar spoliation attempts occurred on the devices for the period June 1, 2020 to the present; (4) Whether there should be search of the internet browser history for the period of June 1, 2020 through July 22, 2020; (5) Whether Plaintiffs may receive a print and fax history for the period of June 1, 2020 through July 22, 2020, unless it is tied to key word searches; (6) Whether the neutral examiner will retain the images in his possession at all times during the pendency of this case; (7) Whether Plaintiffs' proposed search terms are too broad; and *2 (8) Whether Plaintiffs shall receive all information from the forensic examiner not otherwise designated as privileged or confidential (instead of from Defendants). See generally Doc. Nos. [38-1] and [39-1]. The Court will address each contested provision in turn, with a recognition of its prior order that “[t]he imaging/analysis shall be for purposes of determining when the Operating Agreement at issue was created, accessed, modified, and deleted.” Doc. No. [29], p. 10. The Court's ruling is also based on the good cause requirement of Federal Rule of Civil Procedure 26(c)(1).[2] As for the first contested provision (i.e., whether Plaintiffs may receive a redacted file activity list that does not contain any file names or path information at the same time Defendants receive a complete and unredacted file activity list for the period April 22, 2020 to July 22, 2020), the Court answers this question in the affirmative based on the declaration of Plaintiffs' expert that indicates that such information is “routinely released to both parties” with a redaction to Plaintiffs as “[t]his allows all parties to see the amount of data on the imaged devices and then subsequently engage in privilege designations and the challenge process.” Doc. No. [38-4], ¶ 28. The Court is unable to uphold Defendants' arguments to the contrary. Doc. No. [39-1], pp. 8–9. As for the second contested provision (i.e., whether Plaintiffs may receive the listing of any external storage device(s) that were connected to the computers for the period April 22, 2020 to July 22, 2020 at the same time Defendants receive the information, assuming no file names are contained in the results delivered to Plaintiffs or any other substantive information that could be subject to privileged objection which would be redacted), it appears that Defendants now agree to this provision. Doc. No. [39-1], pp. 15–16. Accordingly, the Court resolves the question in the affirmative in the absence of objection and because the provision is reasonable. As for the third contested provision (i.e., whether Plaintiffs may receive the results of the examiner's review of whether any wiping software, reinstallation of operating systems, or similar spoliation attempts occurred on the devices for the period June 1, 2020 to the present), it appears that Defendants now agree to this provision. Doc. No. [39-1], pp. 15–16. Accordingly, the Court resolves the question in the affirmative in the absence of objection and because the provision is reasonable. As for the fourth contested provision (i.e., whether there should be search of the internet browser history for the period of June 1, 2020 through July 22, 2020), Defendants argue that “internet browser history has nothing to do with whether or not any file or data actually is stored on the computers at issue related to the Operating Agreement—the undisputed purpose of the Court's August 28 Order.” Doc. No. [39-1], p. 9. The Court agrees and answers this question in the negative. Plaintiffs have not provided a satisfactory justification for internet browser history for purposes of the forensic analysis at issue. *3 As for the fifth contested provision (i.e., whether Plaintiffs may receive a print and fax history for the period of June 1, 2020 through July 22, 2020), unless it is tied to key word searches, the Court answers this question in the affirmative, but deletes the key word search requirement. The Court's ruling is based upon the testimony presented at the February/March 2021 preliminary injunction hearings, which showed that Defendant Jack Parker printed the Operating Agreement document at issue, as well as the testimony that showed that it is possible for a forensic expert to locate a temporary copy of a printed file. Doc. Nos. [95] Hearing Tr. 22:12–7; [96] Hearing Tr. 354: 1–3.[3] To this regard, Plaintiffs may receive the print/fax history without a tie to a key word search. As for the date range, the Court agrees that it is appropriate that the search encompass when the document was allegedly created and when the possibility for creation ended, i.e., through the initial production of the alleged operating agreement from Defense Counsel to Plaintiffs' Counsel. As for the sixth contested provision (i.e., whether the neutral examiner will retain the images in his possession at all times during the pendency of this case), Defendants object on the ground that the data belongs to them and they have “a vested interest to [e]nsure that any such proprietary information remain protected in its possession after this examination is complete.” Doc. No. [39-1], p. 19. Defendants note the recent data breaches that many “high-tech” companies have suffered in the past to support their position. Id. Defendants also note that Plaintiffs would receive and retain any “hits” from the search, “so there would be no need for the forensic examiner to retain the captured images after the searches and production are complete.” Id. The Court recognizes that Plaintiffs' forensic expert states in his declaration that such a procedure is reasonable, but he does not specifically state that the proposed procedure is routine. Doc. No. [38-4], ¶ 13. Without more, the Court answers this question in the negative. The examiner shall not retain custody of the original images created by the neutral throughout the litigation. The images shall be returned to Defense Counsel at the conclusion of the forensic examination and production process. As for the seventh contested provision (i.e., whether Plaintiffs' proposed search terms are too broad), the Court notes that Defendants argue that the following search terms proposed by Plaintiffs are irrelevant to whether the Operating Agreement at issue can be found on the computers at issue: “sos.gov;” “sos w/1 gov;” “Secretary of State;” and “Secretary w/1 of w/1 State.” Doc. No. [39-1], p. 10. Plaintiffs offer no specific justification for these search terms in their filing at Doc. No. [38-1]. Without more, these terms do not appear to the Court to directly relate to when the Operating Agreement at issue was created, accessed, modified, and deleted. Accordingly, the Court answers the question presented in the affirmative and deletes the following search terms from the proposed order: “sos w/1 gov” “and “Secretary w/1 of w/1 State.”[4] Defendants also raise attorney-client privilege concerns regarding the following proposed search terms: “Altman w/100 operating” and “Altman w/100 partnership.” Doc. No. [39-1], p. 11. The Court upholds Defendants' arguments to this regard and deletes these terms from the proposed order. *4 As for the eighth contested provision (i.e., whether Plaintiffs shall receive all information from the forensic examiner not otherwise designated as privileged or confidential instead of from Defendants), the Court answers this question in the affirmative. In essence, the Court recognizes Defendants' Rule 26,[5] costs, and inefficiency arguments (Doc. No. [39-1], pp. 17–18); however, because of the nature of the claims of this case and the significant credibility issues surrounding the merits of this case, the Court deems it proper for the neutral forensic examiner to produce the non-privileged and non-confidential information to Plaintiffs' Counsel in the interests of judicial economy and prevention of potential/additional motions practice concerning the evidential integrity of the production. On the whole, after review of the evidence and arguments, the Court is of the opinion that Plaintiffs' proposed protective order is more comprehensive; however, there are some parts that need to be modified so that the forensic protective order is reasonably limited in scope and offers adequate protections to Defendants' privileged and other proprietary information. To this regard, the Court approves the majority of Plaintiffs' proposed order (Doc. No. [38-1], with the modifications, discussed herein. In conclusion, Plaintiffs' Motion for Entry of Protective Order (Doc. No. [38]) is GRANTED in part and Defendants' Motion for Protective Order Regarding Limited Computer Forensic Imaging and Search Protocol (Doc. No. [39]) is DENIED. The protective order (as proposed by Plaintiffs and modified by the Court) will be entered on CM/ECF by separate docket entry. The prior requirement that the parties equally split the cost of the forensic examination remains the Order of the Court. IT IS SO ORDERED this 4th day of May, 2021. Footnotes [1] Per the Court's prior order, the attorneys of record were supposed to confer and agree on a protective order. Doc. No. [29], p. 11. Unfortunately, an agreement was never reached. Because an agreement was never reached, the Court declines Defendants' request to enter an order that is consistent with failed negotiations. Doc. No. [39-1], p. 7. The Court will enter an order that is in accordance with applicable law, inclusive of Federal Rule of Civil Procedure 26(c). In addition, the Court recognizes that the time period for the limited expedited discovery as contemplated by the Court's August 28, 2020 order (Doc. No. [29]) has long passed; however, the regular discovery period remains ongoing until August 2, 2021 (via the Court's grant of Plaintiffs' extension request). Therefore, the Court exercises its discretion to extend (and otherwise amend) its prior forensic discovery order at Doc. No. [29] to provide that the forensic imaging/analysis contemplated therein shall be completed during the regular/ongoing discovery period and shall be governed by the forensic protective order (discussed herein and entered by separate docket entry on CM/ECF), as well as the global protective order, entered by separate order/docket entry on CM/ECF (to the extent applicable). [2] Rule 26(c)(1) provides in relevant part: A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending .... The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense .... Fed. R. Civ. P. 26(c)(1). [3] While the Court recognizes that there was some questioning/statements made about the multi-function printer/scanner located at the Defendants' business premises, no formal motion was made to amend the forensic examination protocol to add the printer/scanner to the Court's order. The parties may, however, agree to this addition on their own. [4] While referenced by Defendants in their briefing (Doc. No. [39-1], pp. 10–11), the Court did not locate the following terms in the proposed order (at Doc. No. [38-3], p. 10, ¶ 1.19): “sos.gov;” “Secretary of State.” Nevertheless, the Court does not approve said search terms in the event that there has been an oversight. [5] Defendants do not cite to a particular provision of Rule 26; however, the Court finds that its Order is consistent with the protective order provisions of Rule 26(c)(1)(B), (C) as the Court's Order specifies the terms for the disclosure and prescribes a discovery method through production by the neutral examiner.